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2016 DIGILAW 3722 (ALL)

SURENDRA NATH UPADHYAYA v. STATE OF U. P.

2016-11-16

P.K.S.BAGHEL

body2016
JUDGMENT Hon’ble P.K.S. Baghel, J.—The petitioner was initially appointed as an Assistant Accountant on daily wage basis in U.P. Sahakari Gramya Vikas Bank Limited, Faizabad. He has instituted this writ petition for issuance of a writ of certiorari to quash the order dated 26.6.2014 passed by the second respondent rejecting his claim for regularization. 2. The essential facts of the case are; U.P. Sahakari Gramya Vikas Bank Limited, Lucknow is a Cooperative Bank and is governed under the provisions of the U.P. Cooperative Societies Act, 1965. It employed the petitioner on the post of Assistant Accountant/Clerk on 18.10.1983 on daily wage basis at one of its Branches Colonelganj, district Gonda. The petitioner was graduate and he was eligible for the post. In the year 1985 the petitioner’s services were dispensed with. 3. Aggrieved by the action of the Bank, the petitioner raised an industrial dispute and the State Government referred the matter under Section 4-K of the U.P. Industrial Disputes Act, 1947 to the Labour Court to adjudicate the issue. The Labour Court vide its order dated 23.12.1996 declared the removal of the petitioner as illegal and has directed the respondents to reinstate the petitioner. 4. Dissatisfied with the award of the Labour Court the third respondent preferred a writ petition i.e. Service Single No. 702 of 1998, wherein a conditional interim order was passed for compliance of Section 17-B of the Act, 1947 within four weeks. It is stated that the said order was complied with by the third respondent and the petitioner was reinstated and he continued to work. 5. It is stated that during the pendency of the appeal on 10.7.1998 some of the juniors to the petitioner were regularized. The names of juniors have been mentioned by the petitioner in paragraph-11 of the writ petition. It is further stated that the petitioner was not considered on the ground that the writ petition of the third respondent challenging the order of the Labour Court was pending at that point of time. The writ petition filed by the third respondent challenging the order of the Labour Court came to be disposed of on 21.4.2014 and the award of the Labour Court dated 23.12.1996 was not set aside. 6. In its order dated 21.4.2014 the Court had directed the petitioner (the third respondent herein) to consider the claim of the petitioner for regularization. The writ petition filed by the third respondent challenging the order of the Labour Court came to be disposed of on 21.4.2014 and the award of the Labour Court dated 23.12.1996 was not set aside. 6. In its order dated 21.4.2014 the Court had directed the petitioner (the third respondent herein) to consider the claim of the petitioner for regularization. The Court has also taken note of the fact that several juniors to the petitioner have been regularized who were engaged much after the petitioner’s appointment. 7. In compliance of the direction of this Court dated 21.4.2014 the petitioner’s claim for regularization has been rejected by the impugned order dated 26.6.2014 amongst other on the grounds that at the time of initial appointment of the petitioner he did not have requisite qualification as he was not Graduate in Commerce; the next ground was that the petitioner has become overage. 8. A counter-affidavit has been filed. In the counter-affidavit in paragraph-10 it has been admitted that while considering the regularization juniors to the petitioner were not considered on the ground that the said writ petition was pending. 9. A supplementary counter-affidavit has also been filed today to indicate the essential qualification prescribed for the post of the Assistant Clerk in the year 1983 wherein it has been admitted that the petitioner did possess the essential qualification. In paragraph-3 of the supplementary counter-affidavit filed today it has been stated that at the time of initial appointment of the petitioner the requisite qualification was only ‘’Graduation’. Relevant part of the paragraph-3 of the supplementary counter-affidavit reads as under: “3. That, on behalf of the Bank, instruction was given alongwith the document related to prescribed qualification for the aforesaid post, and according to that, at the time of appointment/engagement of the petitioner on daily wage basis, the qualification prescribed for the post of Assistant Branch Accountant/Assistant Accounts Clerk was only ‘Graduation’, as is evident from the documents related to prescribed qualification. A true photocopy of the document, showing the qualification prescribed for the post of Assistant Branch Accountant/Assistant Accounts Clerk is being filed herewith as Annexure No. SCA-1" 10. I have heard Sri Vivek Tripathi, learned counsel for the petitioner, learned Standing Counsel and Sri Balram Yadav, learned counsel for the respondent Nos. 2 to 5. 11. A true photocopy of the document, showing the qualification prescribed for the post of Assistant Branch Accountant/Assistant Accounts Clerk is being filed herewith as Annexure No. SCA-1" 10. I have heard Sri Vivek Tripathi, learned counsel for the petitioner, learned Standing Counsel and Sri Balram Yadav, learned counsel for the respondent Nos. 2 to 5. 11. The learned counsel for the petitioner submits that the petitioner was initially engaged in the year 1983 and at that point of time he possessed the essential qualification, ‘’Graduation’. By the impugned order the petitioner’s claim has been rejected on the wrong premise that the petitioner did not possess Graduation with Commerce. It is further submitted by the learned counsel that in the year 1998 a large number of juniors to the petitioner have been regularized and this fact has not been denied in the counter-affidavit. Lastly, it was submitted that the ground of overage taken for denying the claim of regularization is also incorrect as the petitioner was within the age limit in the year 1998 when his juniors have been regularized. 12. Learned counsel for the respondent Nos. 2 to 5 Sri Yadav submits that in 1998 the appointment of the petitioner was treated to be fresh appointment hence his case has been rejected on the ground that he does not possess essential qualification. No other submission has been made. 13. I have heard learned counsel for the parties and considered their submissions. 14. The petitioner was working on daily wage basis since 1983. His services were dispensed with in 1985. He raised the industrial dispute and vide award dated 23.12.1996 his removal order dated 1.7.1985 was declared illegal and was set aside and a further direction was issued by the Labour Court to reinstate the petitioner. The respondent challenged the said award under Article 226 of the Constitution. The said petition was dismissed in the year 2014. 15. Indisputably, in the year 1998 the respondents have undertaken an exercise to regularize some of the employees. In this regard a large number of juniors to the petitioner have been regularized. The names of the juniors have also been mentioned by the petitioner in paragraph-11 of the writ petition. The respondents have not denied this fact in paragraph-10 of the counter-affidavit. In this regard a large number of juniors to the petitioner have been regularized. The names of the juniors have also been mentioned by the petitioner in paragraph-11 of the writ petition. The respondents have not denied this fact in paragraph-10 of the counter-affidavit. In paragraph-10 of the counter this fact has been admitted that in the year 1998 the eligible candidates were taken into consideration by the Selection Committee but the petitioner was not found eligible for regularization of his services as his case was different from the case of other candidates and the operation of the enforcement of the award dated 23.12.1996 passed in favour of the petitioner by the Labour Court was stayed on 1.4.1999, therefore, the petitioner was not treated to be eligible for regularization. 16. It has not been specified in the counter-affidavit that why the case of the petitioner was different from his juniors. Learned counsel for the private respondents has tried to explain it on the ground of language used in the award of the petitioner and his juniors whose matter was also referred to the Labour Court. It was submitted by the learned counsel that in the case of the petitioner the Labour Court did not issue direction with regard to the continuity of services whereas in the case of his juniors the said word was used. I am unable to accept the said submission of the learned counsel for the private respondents for the reason that in the award of the petitioner it is clearly mentioned that his removal order was illegal and is set aside. 17. The Labour Court has further directed that the petitioner shall be reinstated. There was no need to interpret the said direction which was very simple and clear whether the word continuity is used or not, it was totally immaterial. Once the removal order itself was declared illegal, and a direction was issued for the reinstatement of the petitioner, thus, in my view the stand in the counter-affidavit is totally unsustainable. 18. In regard to the ground mentioned in the impugned order that the petitioner did not have essential qualification, in the supplementary counter-affidavit it has been admitted that the essential qualification of the Assistant Clerk in the year 1983 was simply Graduation. 18. In regard to the ground mentioned in the impugned order that the petitioner did not have essential qualification, in the supplementary counter-affidavit it has been admitted that the essential qualification of the Assistant Clerk in the year 1983 was simply Graduation. Concededly, the petitioner was Graduate in the year 1983 when he was appointed hence it cannot be said that the petitioner was not eligible at the time of his initial appointment. 19. As regards the submissions of learned counsel for the respondents that a fresh appointment was made in the year 1998, therefore, the qualification of the petitioner, prevailing at that time i.e. in the year 1998, was considered. This submission is also devoid of any merit. 20. The removal order of the petitioner was declared illegal and once an order for reinstatement was passed which was challenged by the respondents by means of a writ petition and the said writ petition was dismissed, there was no question of fresh appointment as the petitioner was uninterruptedly working. For a brief period, an interim order passed by this Court on the petition of the respondents but in that writ petition also the interim order was to comply the provisions of Section 17-B of the Act which the respondents have complied with thus there was no doubt about the continuity of the services of the petitioner. 21. For the reasons mentioned above, I find that the impugned order dated 26.6.2014 is unsustainable and is liable to be quashed. It is accordingly quashed. 22. Now the question arises what relief can be granted to the petitioner. The Supreme Court in a series of decisions has held that once a writ petition is dismissed and interim order is merged in final order, it is the duty of the Court to restore the position which was at the time of filing of the writ petition and the aggrieved party must be compensated. Reference may be made to the judgements of the Supreme Court in the case of South Eastern Coalfields Ltd. v. State of M.P. and others, (2003) 8 SCC 648 . The Supreme Court has observed as under: “26. In our opinion, the principle of restitution takes care of this submission. Reference may be made to the judgements of the Supreme Court in the case of South Eastern Coalfields Ltd. v. State of M.P. and others, (2003) 8 SCC 648 . The Supreme Court has observed as under: “26. In our opinion, the principle of restitution takes care of this submission. The word “restitution” in its etymological sense means restoring to a party on the modification, variation or reversal of a decree or order, what has been lost to him in execution or decree or order or the Court or in direct consequence of a decree or order (See : Zafar Khan v. Board of Revenue, U.P., 1984 Supp SCC 505 : AIR 1985 SC 39 ). In law, the term “restitution” is used in three senses; (i) return or restoration of some specific thing to its rightful owner or status; (ii) compensation for benefits derived from a wrong done to another; and (iii) compensation or reparation for the loss caused to another. (See Black’s Law Dictionary, Seventh Edition, p.1315). The Law of Contracts by John D. Calamari & Joseph M. Perillo has been quoted by Black to say that “restitution” is an ambiguous term, sometimes referring to the disgorging of something which has been taken and at times referring to compensation for injury done. “Often, the result in either meaning of the term would be the same. ...Unjust impoverishment as well as unjust enrichment is a ground for restitution. If the defendant is guilty of a non-tortuous misrepresentation, the measure of recovery is not rigid but, as in other cases of restitution, such factors as relative fault, the agreed upon risks, and the fairness of alternative risk allocations not agreed upon and not attributable to the fault of either party need to be weighed.” The principle of restitution has been statutorily recognized in Section 144 of the Code of Civil Procedure, 1908. Section 144 of the C.P.C. speaks not only of a decree being varied, reversed, set aside or modified but also includes an order on par with a decree. The scope of the provision is wide enough so as to include therein almost all the kinds of variation, reversal, setting aside or modification of a decree or order. The interim order passed by the Court merges into a final decision. The scope of the provision is wide enough so as to include therein almost all the kinds of variation, reversal, setting aside or modification of a decree or order. The interim order passed by the Court merges into a final decision. The validity of an interim order, passed in favour of a party, stands reversed in the event of final decision going against the party successful at the interim stage. Unless otherwise ordered by the Court, the successful party at the end would be justified with ail expediency in demanding compensation and being placed in the same situation in which it would have been if the interim order would not have been passed against it. The successful party can demand (a) the delivery of benefit earned by the opposite party under the interim order of the Court, or (b) to make restitution for what it has lost; and it is the duty of the Court to do so unless it feels that in the facts and on the circumstances of the case, the restitution would far from meeting the ends of justice, would rather defeat the same. Undoing the effect of an interim order by resorting to principles of restitution is an obligation of the party, who has gained by the interim order of the Court, so as to wipe out the effect of the interim order passed which, in view of the reasoning adopted by the Court at the stage of final decision, the Court earlier would not or ought not to have passed. There is nothing, wrong in an effort being made to restore the parties to the same position in which they would have been if the interim order would not have existed.” 23. Having regard to the fact that the Labour Court had passed the award in favour of the petitioner in the year 1996 and the respondents have engaged in fruitless and unnecessary litigation for more than twenty years, I am of the view that the petitioner deserves to be compensated for this prolong litigation. Accordingly, the respondents shall pay a cost of Rs. 10,000/-. The matter is remitted to the respondent No. 2 to pass a fresh order in the light of the judgment within two months from the date of communication of this order. 24. The writ petition is, accordingly, allowed. 25. No order as to costs.