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Allahabad High Court · body

2016 DIGILAW 3567 (ALL)

Ram Saran v. State of U. P.

2016-10-25

P.K.S.BAGHEL

body2016
JUDGMENT Pradeep Kumar Singh Baghel, J. 1. The petitioners are working on daily wage basis in the Forest Department. They have instituted this writ proceedings praying for quashing of the order passed by the fourth respondent dated 11.07.2014 rejecting the claim of the petitioners. 2. A brief reference to the factual aspects would suffice. 3. The petitioner no. 1 claims that he was initially engaged as a Mali in the year 1985 in the Social Forestry Branch of the Forest Department. The petitioner no. 2 also claims that he was engaged in 1979 as a Mali in the same department. After working for a quite long time the association of the daily wage employees raised a dispute for regularization of the services of 45 Malies and Chowkidars who have been working in the Social Forestry Branch of the Forest Department 1 to 18 years at that time. The matter was considered by the Reconciliation Officer of the Labour Department in the year 1984. When the reconciliation failed, the matter was referred by the State Government on 14th June, 1986 to the Labour Court under Section 4-K of the U.P. Industrial Disputes Act. The Labour Court allowed the reference on 06.04.1989. 4. The Labour Court in its award recorded that though the demand of the workman was genuine but the Tribunal has no power to issue a direction for regularization of daily wage employees in the department, however, the department was given a direction to fill the vacancies within three months from the date of publication of the award and to maintain proper attendance records of daily wage employees in the department. 5. The Labour Court also recorded a finding that the petitioners were found to be working in the department continuously. It is stated that in stead of complying the direction of the Labour Court to fill all the vacancies the respondents stopped some of the daily wagers from discharging their duties w.e.f. 01.05.1990. Aggrieved by the said action the Van Vibhag Shramik Sangh filed a writ petition i.e. Writ Petition No. 5348 of 1990. This Court passed an interim order on 31.05.1990 by issuing a direction that the employees who have put in more than 240 days of continuous satisfactory service with the opposite parties and there is no order in writing of their termination, they shall be allowed to continue in the service. This Court passed an interim order on 31.05.1990 by issuing a direction that the employees who have put in more than 240 days of continuous satisfactory service with the opposite parties and there is no order in writing of their termination, they shall be allowed to continue in the service. In compliance of the interim order passed by this Court, the respondents allowed the petitioners to continue on their respective position. The said writ petition was finally disposed of on 15.07.2003 with a direction to the opposite parties that they shall consider the claim of the petitioners for regularization in the light of the U.P. Regularization of Daily Wages Appointments on Group ''D' Posts Rules, 2001 and the judgement of the Apex Court in the case of State of U.P. and others v. Putti Lal, (2002) 2 UPLBEC 1595 at the earliest preferably within six months. It was also directed, till then the case for regularization is considered they shall be paid salary at the minimum of the scale admissible to the counterparts in the department. 6. In compliance thereof, the petitioners made a representation on 31.07.2003 before the authority concerned for consideration of their regularization. It is stated that the fourth respondent vide its order dated 20.08.2004 rejected the claim of the petitioners by a non-speaking order and the petitioners again preferred a writ petition i.e. Writ Petition No. 5744 (S/S) of 2004 (Ram Saran and others v. State of U.P. and others). In the said writ petition, a counter affidavit was filed. The stand taken by the respondents therein was that the petitioners were continuously working since 09.06.1991. 7. Later, an interim order was passed on 30.06.2008 whereby the respondents were directed to continue the petitioners in service with the same status, salary/ wages etc. which they were enjoying before dispensation of their services. In compliance of the said order, the petitioners have been allowed to work on daily wage basis. The said writ petition was dismissed by the learned Single Judge on 25.01.2012. 8. Dissatisfied with the order of the learned Single Judge the petitioners preferred Special Appeal No. 45 of 2012 (Ram Saran and others v. State of U.P. and others). The said special appeal was allowed on 09.04.2014. The order of the learned Single Judge was set aside in the special appeal. 8. Dissatisfied with the order of the learned Single Judge the petitioners preferred Special Appeal No. 45 of 2012 (Ram Saran and others v. State of U.P. and others). The said special appeal was allowed on 09.04.2014. The order of the learned Single Judge was set aside in the special appeal. A direction was issued to reconsider the case of the petitioner for regularisation, taking into account the observations made in the order. 9. Learned Counsel for the petitioners has made a statement that, as per his knowledge is concerned, no special leave petition has been preferred against the judgement of the special appeal. 10. Learned Standing Counsel has also no knowledge about any special leave petition, hence it can be assumed that the order of special appeal has attained finality. 11. In compliance of the order passed in Special Appeal, the impugned order came to be passed. In the impugned order the claim of the petitioners for regularization has been rejected only on the ground that although they are working for a long time but their continuance is not established from the cash-book. No other ground has been mentioned in the impugned order. 12. Learned counsel for the petitioners has drawn the attention of the Court to the findings recorded by the Division Bench in paragraph nos. 14 and 15 of its judgement wherein it is recorded that it is an admitted fact that the petitioners are daily wagers, who were engaged in 1985 and 1979 respectively and they were in continuity of service till the impugned order has been passed. Lastly, it was urged that the petitioners are continuously working and there is no statutory requirement or norms which indicate that the cash-book is only a relevant record and in absence of the name in the cash book a person cannot be treated to be working in the department, although the other documents indicate that the person was engaged and continuously working on daily wage basis. 13. Learned Standing Counsel submits that finding that the petitioners' names are not shown in the cash book, makes their case doubtful. He has justified the reason recorded in the impugned order. 14. I have considered the rival submissions of the parties and perused the record. 15. 13. Learned Standing Counsel submits that finding that the petitioners' names are not shown in the cash book, makes their case doubtful. He has justified the reason recorded in the impugned order. 14. I have considered the rival submissions of the parties and perused the record. 15. The matter of the daily wage employees working in the Social Forestry Branch was referred by the State Government to the Labour Court under Section 4-K of the U.P. Industrial Disputes Act. The award of the Labour Court clearly records a finding that 45 workmen are working for more than 240 days and the persons who have been working for years together should get a regular job hence a direction was issued to the department to fill all the vacancies within three months from the publication of this award. 16. The award of the Labour Court dated 06.04.1989 was not challenged by the Forest Department, neither they complied the direction to fill the vacancies by regular selection. The award itself indicates that the petitioners were working at the time of reference. The award was made in the year 1989. Later, when the award was ignored, the petitioners preferred a writ petition. In the said writ petition also an interim order was passed and the matter was sent back to the respondents to consider their regularization. The fourth respondent, at that point of time, rejected their claim by a cryptic order. Their writ petition was dismissed but in the special appeal the Court has recorded a finding that they are admittedly working since long time. Paragraph Nos. 14, 15 and 18 of the judgment in Special Appeal No. 94 of 2012 are relevant for the issue involved in the present case hence the aforesaid paragraphs are extracted herein below for the sake of convenience: "14. A plain reading of the rule reveals that the pre condition required for the purposes of regularization is continuity of service with satisfactory service record upto 29.6.1991. The rule itself relates to the regularization of service of person engaged on daily wage basis. 15. In the present case, it is an admitted fact that the petitioners are daily wagers, who were engaged in service in the respective years i.e. in the years 1985,1979 and 1981. They were in continuity of service till the impugned order has been passed. 15. In the present case, it is an admitted fact that the petitioners are daily wagers, who were engaged in service in the respective years i.e. in the years 1985,1979 and 1981. They were in continuity of service till the impugned order has been passed. The impugned order does not reveal that the petitioners have possessed unsatisfactory service and they were not in continuity of service. Moreover, no finding has been recorded in this regard. Petitioners seems to entitled for regularisation. 18. Accordingly, it is not a case of the Respondent-State that it was not proper for the Forest Department to engage a person on daily wage basis, rather engagement seems to have been admitted on daily wage basis and affirmed by earlier judgment of this Court. Accordingly, the appointment and engagement of the petitioners and alike persons to meet out the exigency of service, does not seems to be disputed by the respondent-State during the earlier proceedings in this Court. Since the original engagement of the petitioners as daily wager was not in dispute and continuity of service even after the year 2003, seems to have been considered in its right perspective and affirmed by this Court, there appears no justification on the part of the respondent to reject the petitioners' claim for regularization. The constitution Bench judgment in the case of Uma Devi (Supra), affirmed by the Hon. Apex Court in the case of U.P. State Warehousing Corporation ( Supra), it has been held that the employees have a right to avail the benefit of their statutory right with regard to regularization." 17. The findings recorded in the judgment indicates that the department has admitted before the Division Bench that the petitioners have been working for a long time. As noted above, neither any review application was filed nor any Special Leave Petition was preferred challenging the said finding of the Division Bench where it was recorded in clear terms that it is an admitted case of the parties that the petitioners are working since 1985 and 1979 respectively. While remanding the matter, this Court has asked the authority concerned to reconsider the case taking into account the observations made in the judgement. Relevant part of the order dated 09.04.2014 passed in Special Appeal No. 94 of 2012 reads as under: "Accordingly, appeal is allowed. Writ Petition also stands allowed. While remanding the matter, this Court has asked the authority concerned to reconsider the case taking into account the observations made in the judgement. Relevant part of the order dated 09.04.2014 passed in Special Appeal No. 94 of 2012 reads as under: "Accordingly, appeal is allowed. Writ Petition also stands allowed. The impugned order dated 20.8.2003 is set aside and a writ in the nature of mandamus is issued directing the respondent-State to reconsider the case of the petitioners for regularization, taking into account the observations made herein above, expeditiously, preferably within a period of three months from the date of production of certified copy of this judgment and other. No order as to cost." 18. In compliance thereof, by the impugned order the fourth respondent has rejected the claim of the petitioner only on the ground that their name is not in the cash-book. The impugned order also indicates that the authority concerned has called the comments from the appropriate authority, Regional Forest Officer, Rudauli and Regional Forest Officer, Faizabad. As per the report, the petitioner no. 1 has been working since 22.10.2008 continuously, however, his claim was rejected only on the ground that his name is not mentioned in the cash book. A similar finding has been recorded in respect of the no. 2 also. 19. A perusal of the impugned order demonstrates and establishes that the authority concerned has passed the order in a most casual manner. He has not taken care to go through the judgment of the special appeal wherein a clear finding has been recorded in paragraph 14, 15 and 18 regarding the working of the petitioners since 1985 and 1979. Said finding was based on the admitted facts in the special appeal. Moreover, the Division Bench in its operative portion has issued a direction to the respondents to pass an order in the light of the observations made in the judgment. The fourth respondent has passed a sekeletal and cryptic order without giving any attention to the directions issued by the Division Bench. 20. If a Court issues a direction to an authority to pass an order in the light of observations made in the judgment then it is obligatory on the authority to consider the case in terms of observations and no new ground can be taken to reject the claim. 20. If a Court issues a direction to an authority to pass an order in the light of observations made in the judgment then it is obligatory on the authority to consider the case in terms of observations and no new ground can be taken to reject the claim. If relevant rules or the judgment of the Court were not brought to the Court, its observations were contrary to law, in that event only course open to the authority was to file a review, inviting attention of the Court to the said fact or to file appeal to superior Court. It is not open to the authority to ignore the observations of the Court or sit in appeal on the directions of the Court. 21. If the Court directs an authority / tribunal to decide the matter in accordance with law, the authority/ tribunal is free to take appropriate decision which it deem fit according to the law. But when there is clear direction to decide the matter in light of the observations/ findings of the Court, the authority is bound by the observations and he can not take contrary view. 22. In view of the above, the order of the fourth respondent dated 11.07.2014 is liable to be set aside. It is, accordingly, set aside. 23. Now the question remains to be decided is what relief can be granted to the petitioner as earlier also this Court, setting aside the order impugned therein, had remitted the matter back to the fourth respondent for consideration, however, again the fourth respondent has passed the same order in teeth of the findings recorded by the Division Bench. 24. It is a common experience that the authorities are passing such type of orders in a large number of cases without paying due regard to the judgments of the superior Courts. Recently, the Supreme Court has taken note of such tendency of the authorities in the case of Central Cooperative Consumers' Store Ltd. Tghrough its General Manager v. Labour Court, H.P. at Shimla and another, (1993) 3 SCC 214 , wherein the Court has held as under: "5. Public money has been wasted due to adamant behaviour not only of the officer who terminated the services but also due to cantankerous attitude adopted by those responsible for pursuing the litigation before one or the other authority. They have literally persecuted her. Public money has been wasted due to adamant behaviour not only of the officer who terminated the services but also due to cantankerous attitude adopted by those responsible for pursuing the litigation before one or the other authority. They have literally persecuted her. Despite unequal strength the opposite-party has managed to survive. We are informed that the opposite-party has been reinstated. This was put forward as bona fide conduct of petitioner to persuade us to modify the order in respect of back wages. Facts speak otherwise. Working life of opposite-party has been lost in this tortuous and painful litigation of more than twenty years. That for such thoughtless acts of its officers the petitioner-society has to suffer and pay an amount exceeding three lakhs is indeed pitiable..." 25. In view of the above, this Court is of the view that no useful purpose would be served to send the matter back to the authority concerned and in some cases the Court itself can issue the direction without remitting the matter to the authority concerned. Reference may be made to the judgement of the Supreme Court in the case of Reference may be made to the judgments in the cases of Comptroller and Auditor-General of India, Gian Prakash, New Delhi and another v. K.S. Jagannathan and another, (1986) 2 SCC 679 and State of Bihar v. Dr Braj Kumar Mishra and others, (1999) 9 SCC 546 . 26. In view of the above, a direction is issued to the fourth respondent to pass an appropriate order for regularization of the petitioners in view of the findings recorded in the special appeal which has attained finality. Having regard to the fact that the petitioners are daily wage employees and they have been dragged to the Court again and again by the respondents from 1989 onwards, it would be appropriate to impose a cost upon the respondents, accordingly, Rs. 10,000/- shall be paid to each petitioner by the respondents. 27. It is open to the State Government to recover the said amount of cost from the fourth respondent as the said cost shall not be borne by the State Exchequer. 28. With the aforesaid directions the writ petition stands allowed.