Satish Sharma v. Central Government Industrial Tribunal Cum Labour Court
2015-03-19
MOHAMMAD RAFIQ
body2015
DigiLaw.ai
JUDGMENT : Mohammad Rafiq, J. This writ petition has been filed by the petitioner-Satish Kumar challenging the award of the Central Administrative Tribunals dated 25.8.2003 whereby the reference was answered in negative. 2. An industrial dispute was referred to the Tribunal at the instance of the petitioner on the following question - "Whether the demand of Shri Satish Kumar, Typist-cum-Clerk from the management of Kendriya Vidhyalaya, Etarna, Alwar for reinstatement with back wages is just and fair and if so, to what relief, he is entitled to?" 3. Undisputed facts are that petitioner was appointed by the respondent with effect from 28.11.1986 on the post of typist-cum-clerk purely on ad hoc basis with the stipulation that such appointment will not last in any case beyond 30.4.1987 and when he was discontinued after 30.4.1987, he filed a writ petition before this Court which was rejected vide judgement dated 11.5.2001 and thereafter he filed special appeal before the division bench, which was allowed by order dated 3.5.2002 whereby direction was issued to the respondents to refer the dispute to the Industrial Tribunal. 4. Shri Sandeep Bhagwati, learned counsel for the petitioner has argued that the Tribunal has failed to consider any material to establish that the termination of the petitioner was covered by exception contained in Section 2(00)(bb) and yet it concluded that the discontinuation of the petitioner was not amount to retrenchment being covered by the said exception. Petitioner has all throughout contending that he was allowed duty with effect from 28.11.1986. His candidature was examined by a Committee constituted for the purpose and mode of selection is same and it would have been adopted without a regular appointment was made. His name was sponsored by Employment Exchange and his appointment was made pursuant to the order passed by the Assistant Commissioner, Kendriya Vidhyalaya Sangathan dated 25.11.1986. The appointment of the petitioner in no way described as adhoc in nature. In the request sent to the employment exchange, the appointment has not been described as adhoc or temporary. It is only because when the Mahendra Singh, the then Member of the Kendriya Vidyalaya demanded a sum of L 12,000 from the petitioner as bribe, which the petitioner declined to give and, therefore, he was discontinued from service. 5.
In the request sent to the employment exchange, the appointment has not been described as adhoc or temporary. It is only because when the Mahendra Singh, the then Member of the Kendriya Vidyalaya demanded a sum of L 12,000 from the petitioner as bribe, which the petitioner declined to give and, therefore, he was discontinued from service. 5. Learned counsel for the petitioner further argued that as per the provisions of the Rules, appointment may be made only in two conditions i.e. (i) When regular employee is on leave for more than 30 days and (ii) when the penal of selected teachers is not available with the Assistant Commissioner. The case of the petitioner does not fall in either of the two categories. The junior persons to the petitioner like Hari Kishan, Mahendra Kumar Vijay and others were retained in service while the petitioner's service were put to an end. There was thus breach of provisions of Section 25G and H of the Act. It is argued that the appointments were made for the year 1986-87 under the circular issued by the Assistant Commissioner dated 7.8.1986. As per stipulation contained in the Circular, the appointment could be made to meet their individual requirement and as per the norms fixed for regular section. Since the then Principal Shri Mahendra Singh was Secretary of the Committee and the name of the candidates were called under his signatures from the Employment Exchange, thereafter written examination was conducted and candidates were interviewed and then a penal was prepared. Thus, it was for all practical purposes, a regular appointment. The Tribunal committed a serious error of law in ignoring the material fact that no appointment letter was ever served on the petitioner by the respondent-Kendriya Vidhyalaya Sangathan or the Principal concerned. It was for the first time that on 28.4.1987, a copy thereof was served upon the petitioner along with attached proforma i.e. proforma of acceptance of offer of appointment. The same was placed before the Tribunal as Ex.Wl. Perusal thereof would though show the said offer, but no period was mentioned in the memorandum. On the contrary in para 6, it is contended that the appointment is purely of adhoc nature, which would not last in any case beyond 30.4.1979. That period had expired long ago and, therefore, the said clause cannot be held against the petitioner.
Perusal thereof would though show the said offer, but no period was mentioned in the memorandum. On the contrary in para 6, it is contended that the appointment is purely of adhoc nature, which would not last in any case beyond 30.4.1979. That period had expired long ago and, therefore, the said clause cannot be held against the petitioner. It was a case of fabrication of documents. Apparently Ex.M1 and M2 neither contain seal or receipt, receipt register. Ex.W6 and W18 submitted by the respondents are also fabricated documents as they are not having any dispatch number, nor is shown as entered in the dispatch register Ex.W20. Learned counsel for the petitioner in support of his arguments has relied on the judgements of Supreme Court in R.S.Rawat v. State of Raj. & Ors.-1993 (1) WLC (Raj.) 79, S.P. Chengalvaraya Naidu (Dead) by L.Rs. v. Jagannath (Dead) by L.Rs. & Ors.- (1994) 1 SCC 1 , G. Narayanaswamy Reddy (Dead) by LRs. & Anr. v. Government of Karnataka & Anr.- (1991) 3 SCC 261 , Wizard India Pvt. Ltd. v. Oriental Bank of Commerce & Ors.-2013 (1) WLC (Raj.) 311, Sukhdev Singh & Ors. v. Bhagatram Sardar Singh Raghuvanshi & Anr.- AIR 1975 SC 1331 , Virender S. Hooda & Ors. v. State of Haryana & Anr.-1999 SCC (L&S) 824, Jarnail Singh & Ors. v. State of Punjab & Ors.-1986 SCC (L&S) 524, 1984 Supreme Court Cases (L&S) 555 and State Bank of India & Ors. v. Palak Modi & Anr.-(2013) 1 SCC (L&S) 717. 6. Shri Krishna Verma, learned counsel for the respondents opposed i the writ petition and submitted that the Tribunal has passed perfectly just and legal award. The findings recorded by the Tribunal are neither erroneous, nor perverse. It is based on objective analysis of the evidence, both oral and documentary laid by the parties. No provision of the Industrial Disputes Act was violated. Perusal of the discussion made by the Tribunal in the award dated 25.8.2003 indicates that the Tribunal has carefully examined the matter and rightly concluded that the claim of the petitioner-workman for reinstatement was not just and fair. In this connection, learned counsel has relied on the judgement in M. Venugopal v. Divisional Manager, LIC- (1994) 2 SCC 323 .
Perusal of the discussion made by the Tribunal in the award dated 25.8.2003 indicates that the Tribunal has carefully examined the matter and rightly concluded that the claim of the petitioner-workman for reinstatement was not just and fair. In this connection, learned counsel has relied on the judgement in M. Venugopal v. Divisional Manager, LIC- (1994) 2 SCC 323 . It is contended that the case of the petitioner was purely contractual in nature and for a specific period, therefore, it fell in the exception category of Section 2(oo) (bb). It is not retrenchment being in exceptional category. Learned counsel submitted that the allegation against the then Principal is totally baseless and without any foundation. Relying on the judgment in State of Punjab v. Chaman Lal Goyal- (1995) 2 SCC 570 , learned counsel argued that such allegations of mala fide cannot be looked into in absence of the concerned Principal being made a party respondent by his name. Learned counsel Estralla Rubber v. Dass Estate (P) Ltd.- (2001) 8 SCC 97 and argued that this Court in it extraordinary power under Article 226/227 cannot act as an appellate court to correct the error of fact. The jurisdiction of this Court under Article 227 of the Constitution is intended to sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and Tribunals within the bounds of their authority and not for correcting mere errors. Learned counsel in support of his arguments has also relied on the judgments of Supreme Court in Haryana State F.C.C.W. Store Ltd. & Anr. v. Ram Niwas & Anr.- (2002) 5 SCC 654 and Essen Deinki v. Rajiv Kumar- (2002) 8 SCC 400 . 7. I have given my anxious consideration to the rival submissions and perused the material on record. 8. Mere fact that requisition was sent to the employment exchange for getting the names of suitable candidates and the case of such candidates was scrutinised by a Committee and such exercise was undertaken pursuant to the direction of the Assistant Commissioner, does not in any manner make the appointment of the petitioner regular in nature.
8. Mere fact that requisition was sent to the employment exchange for getting the names of suitable candidates and the case of such candidates was scrutinised by a Committee and such exercise was undertaken pursuant to the direction of the Assistant Commissioner, does not in any manner make the appointment of the petitioner regular in nature. When the petitioner himself is not disputing that his appointment was made on 28.11.1986 and when the appointment order itself describes the appointment to be purely adhoc in nature, the same cannot be taken as regular because of the mistake in not directly indicating the date. In the order although the date of 30th April was indicated in the first and sixth para of the appointment order with the year 1979 being erroneously indicated in the sixth para. The Tribunal, therefore, cannot be said to have committed any illegality in treating the appointment to be adhoc in nature. The Tribunal has noted that the petitioner indisputably worked with the respondent from 28.11.4986 to 30.4.1987 and in the joining report Ex.W8 issued on behalf of non-applicant-management, it is stated therein that the petitioner-workman has served as a LDC on ad hoc basis from 29.11.1986 to 30.4.1987, the date of joining was described as 28.11.1986. The first stipulation in the appointment order indicates that his ad hoc appointment so will last till the regular incumbent joins or till 30th April whichever is earlier. The space between the expression "30th April and.... whichever is earlier" is lying blank, but this lacuna cannot in any manner concert the ad hoc appointment of the petitioner with so specifically stated in the appointment order as permanent in nature. It is verified even from the last part of the order, which says that "the offer is of a purely ad hoc nature, which will not last in any case beyond 10.4.1979." 9. The year "1979" according to the respondent was a typographical error, which could not be corrected, whereas the perusal of the appointment order indicates that it was a proforma order, which was required to be corrected by the respondents, but in no case this "30th April" could not be an order continuing to the date of the appointment and, therefore, the Tribunal has taken the conclusion that the year in this date should be "1987". Such a conclusion cannot be said to be without justification.
Such a conclusion cannot be said to be without justification. Ex.M2, the letter of Assistant Commissioner addressed to Principals of all the Kendriya Vidhyalaya also required to fill up the post on ad hoc basis for vacancies and teaching and non-teaching staff on ad hoc basis except Yoga teachers in accordance with Article 39 of the Education Code. This letter was written on 3.7.1986 and it was thereafter that 5.11.1986, Ex.W6 was written to the Employment Officer by the Principal to provide the list of suitable candidates for their appointment on ad hoc basis on the post of LDC and others. It was thereafter the approval of the appointment of the petitioner was accorded by the Assistant Commissioner on 25.11.1986 vide Ex.M1, wherein the rank of the petitioner has been shown as 2. The example of Hari Kishan, Ram Kishan Meena and Mahendra Kumar Vijay by the petitioner on the allegation that they were being in later point of time were continued in appointment has been contested by the respondents. As regards Mahendra Kumar Vijay, in Common All-India Seniority List of LDCs upto 1998, his name pointed out at S.No. 411 with 13.12.1986 as his date of appointment. The seniority list pertained to only those appointed on regular basis. The witnesses of the management in his cross examination denied that Hari Kishan and Mahendra Kumar Vijay were working at the time when the petitioner was discontinued from service. Petitioner then failed to prove that anyone was appointed after his appointment and yet was allowed to continue in service at the time of his termination. The cited cases are, therefore, distinguishable. 10. The Supreme Court in Ram Niwas & Anr., supra has held while interpreting Section 2(oo) (bb) in the context of Section 25F held that dis-engagement/termination of workman on happening of the contingency specified in contract of service, such as completion of the project or purpose of engagement, would bring the retrenchment in exceptional category. In the present case, admittedly the appointment was to last till next 30th April following the date of appointment, or till regular incumbent joins, whichever is earlier. Therefore, if the petitioner is discontinued, the action of the respondents in discontinuing him from service, cannot be said to be unjustified. The impugned order does not suffer from any legal infirmity or error of law. The writ petition is dismissed.