Khuma Ram Chaudhary v. Labour Court and Industrial Tribunal, Jodhpur
2016-07-31
SANDEEP MEHTA
body2016
DigiLaw.ai
ORDER : Sandeep Mehta, J. By way of this writ petition, the petitioner Khuma Ram Chaudhary has approached this Court assailing the order dated 03.04.2002 passed by the Judge, Labour Court-cum-Industrial Tribunal, Jodhpur in Labour Case No.353/1999 rejecting the petitioner's claim and upholding the order dated 01.11.1982 passed by the respondents removing and discontinuing the petitioner from service. 2. Facts in brief are that the petitioner claims to have been engaged as a Clerk-cum-Cashier in the respondent Pali Central Cooperative Bank Ltd. by order dated 01.07.1981. A case has been set up in the writ petition that without making any inquiry and without following the due procedure of law, the respondent Bank terminated the petitioner from services by oral order dated 01.11.1982. Thereupon, the petitioner raised an industrial dispute. Conciliation proceedings were held but failed. The matter was referred by the State Government to the Labour Court-cum-Industrial Tribunal, Jodhpur for adjudication under the provisions of the Industrial Disputes Act. The learned Tribunal framed an issue as to whether the removal of the petitioner from services of the respondent Bank by order dated 01.11.1982 was justified or not. After detailed appreciation of the material available on record, the learned Tribunal rejected the claim application by award dated 03.04.2002. Hence this writ petition. 3. Shri A.K. Rajvanshy, learned counsel for the petitioner vehemently contended that the petitioner was appointed as a Clerk-cum-Cashier in the respondent Bank by order dated 01.07.1981. His services were terminated on 01.11.1982 without following the mandatory provisions of the Industrial Disputes Act and without providing any opportunity of hearing and so also without following the principles of natural justice. He thus urged that the impugned orders are absolutely illegal and perverse and while allowing the writ petition, the petitioner should be directed to be reinstated in service of the respondent Bank. 4. Per contra, Shri Sanjay Kappor, learned counsel representing the respondents Cooperative Bank vehemently opposed the submissions advanced by Shri Rajvanshy. He urged that the petitioner was never appointed as a Clerk-cum-Cashier by the Bank. Rather, Sukhlal Saincha, who was the Chairman of the Bank at the relevant point of time, acting on his own whims, drew an order dated 24.06.1981 temporarily assigning the duties of Clerk-cum-Cashier to the petitioner on daily wages at the rate of Rs.15/- per day.
He urged that the petitioner was never appointed as a Clerk-cum-Cashier by the Bank. Rather, Sukhlal Saincha, who was the Chairman of the Bank at the relevant point of time, acting on his own whims, drew an order dated 24.06.1981 temporarily assigning the duties of Clerk-cum-Cashier to the petitioner on daily wages at the rate of Rs.15/- per day. Thereafter, he recommended the payment of salary to the petitioner and a letter dated 09.07.1981 was issued by the Bank sanctioning the payment of the wages. He contended that without prejudice to the above action, the qualification required for appointment as Cashier in the Bank is Graduation with Second Division. Admittedly, the petitioner was not having a Second Division in his Graduation Degree. The Chairman was not competent to appoint the petitioner as a Clerk in the Bank. No letter of appointment allegedly issued to the petitioner on 01.07.1981 was placed on record of the learned Tribunal nor any such letter has been placed on record of the writ petition. Referring to the Circular dated 24.01.1997 governing the appointment of staff in the Central Cooperative Bank, he urged that appointment can only be made by a Selection Committee constituted by three competent members. He thus urged that as the petitioner was never appointed by the Bank, there was no requirement to follow the provisions of the Industrial Disputes Act before discontinuing his services as a daily wager. He therefore, urged that the impugned order does not suffer from any illegality, perversity or irregularity so as to call for any interference by this Court in the writ jurisdiction. 5. I have heard the arguments advanced by the learned counsel for the parties and have gone through the material available on record. It was not disputed by Shri Rajvanshy, learned counsel for the petitioner that the petitioner was having Graduation degree with Third Division only. It was also not disputed that the minimum qualification required for appointment as a Clerk in the Bank was Graduation with Second Division. As the petitioner was not holding the requisite qualification, he could not have been appointed as a Clerk-cum-Cashier in the Bank. The so-called appointment order (Annexure-7) dated 09.07.1981 on which, reliance was heavily placed by learned counsel for the petitioner was issued by Shri Sukhlal Saincha, the Chairman of the Bank, who is reported to be related to the petitioner in his personal capacity.
The so-called appointment order (Annexure-7) dated 09.07.1981 on which, reliance was heavily placed by learned counsel for the petitioner was issued by Shri Sukhlal Saincha, the Chairman of the Bank, who is reported to be related to the petitioner in his personal capacity. As per the mandatory procedure governing the appointment of the employees in the Cooperative Bank, the appointment could only have been made by a Selection Committee constituted of three officials of the Bank. The Hon'ble Supreme court in the case of Krishna Hare Gaur v. Vinod Kumar Tyagi & Ors., reported in AIR 2015 SC 1248 , has held that when the appointment of an employee is dehors the Rules following the principals of natural justice is not required while cancelling such illegal appointment. In the case at hand, the petitioner was never appointed as a Clerk by the Bank. The petitioner claims appointment through an order dated 01.07.1981 which was never brought on record. The order dated 24.06.1981 on which, the learned counsel for the petitioner harped upon, simply reads that the Chairman Sukhlal Saincha feeling that there was a shortage of staff in the Bank's Branch at Jaitaran, acting on his own whims, engaged the petitioner temporarily as a Cashier-cum-Clerk and fixed his salary at Rs.15/- per day. It has not been denied by Shri Rajvanshy that the Chairman individually was not competent to make any appointment in the Bank. Consequently, as there was no lawful appointment of the petitioner as a Cashier in the Bank and since he was not holding the requisite qualification as well, there was no requirement to follow the principles of natural justice or the provisions of the Industrial Disputes Act before disallowing him from working as a Cashier on daily wages. 6. As a result of the above discussion, this Court is of the firm opinion that the impugned orders do not suffer from any illegality, irregularity or perversity so as to call for interference in the exercise of the extraordinary writ jurisdiction of this Court under Article 226 of the Constitution of India. Consequently, the writ petition being devoid of any merit is hereby dismissed. No order as to costs.