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2017 DIGILAW 1338 (ALL)

NAGAR PANCHAYAT EKDIL, ETAWAH v. KHAYALI RAM

2017-05-19

MAHESH CHANDRA TRIPATHI, V.K.SHUKLA

body2017
JUDGMENT Ref: Civil Misc. Delay Condonation Application No. 152338 of 2017 By the Court.—For the reasons stated in affidavit filed in support of delay condonation application, as the same constitutes sufficient cause for condoning delay in filing Special Appeal, the delay condonation application is allowed and the Special Appeal is treated to have been filed well within time. Ref: Special Appeal 2. Nagar Panchayat Ekdil, Etawah through its President is before this Court assailing the validity of the order dated 9.3.2017 passed in Civil Misc. Writ Petition No. 4552 of 2014 (Khyali Ram v. State of U.P. and 5 others) wherein learned Single Judge has proceeded to allow the writ petition in question. 3. Factual background of the case is that the respondent No. 1-petitioner was initially engaged as Pump Operator on daily wage basis on 16.8.1989 in Nagar Panchayat Ekdil, District Etawah and since then he was continuously working. On 11.6.1991 his services were terminated on the ground that his services were no longer required. Consequently, he raised an industrial dispute before the Regional Conciliation Officer. The said dispute was referred to the Labour Court (1), Kanpur for adjudication and the same was registered as Adjudication Case No. 148 of 1993. Ultimately an award dated 6.2.1995 was passed in his favour by the Labour Court. Aggrieved, the Nagar Panchayat, Ekdil had proceeded to approach this Court by preferring Writ Petition No. 19280 of 1995. The petitioner had also filed two writ petitions being Writ Petitions No. 45940 2003 and 16142 of 2004 for regularization of his services and payment of salary. All the three writ petitions were dismissed on 24.2.2006. 4. Thereafter on 8.7.2009 a compromise took place between the parties in Adjudication Case No. 104 of 2003, whereby it was agreed that the employer was to take the respondent No. 1-petitioner back in service and the the order dated 5.4.2003, whereby the petitioner was regularized, was treated to be a valid and legal order and the case was disposed of accordingly. Subsequently, in the year 2013, the respondent No. 1-petitioner filed Writ A No. 52766 of 2013 for quashing the order dated 16.8.2013 passed by the Executive Officer, Nagar Panchayat Ekdil wherein he was shown as daily wage employee on the post of Pump Operator. Subsequently, in the year 2013, the respondent No. 1-petitioner filed Writ A No. 52766 of 2013 for quashing the order dated 16.8.2013 passed by the Executive Officer, Nagar Panchayat Ekdil wherein he was shown as daily wage employee on the post of Pump Operator. The aforesaid writ petition was disposed of on 25.9.2013 directing the respondents to consider the claim of petitioner for payment of regular salary on the post of Pump Operator within six weeks. The claim of the respondent No. 1-petitioner was rejected on 13.11.2013 on the ground that his engagement on daily wage basis in the year 1989 was illegal and therefore, he could not have been regularized in the year 2003. Subsequently, the services of the petitioner as daily wager were terminated on 5.12.2013. The respondent No. 1-petitioner had approached this Court by preferring Writ A No. 4552 of 2014 and learned Single Judge of this Court has proceeded to allow the writ petition on 9.3.2017 with following observations : “Submission of learned counsel for the petitioner is that once this Court has observed that the workman was regularized in service and there is nothing on record to indicate that such regularization was made for some ulterior motive and more-so in the light of the agreement of the year 2009 wherein order of regularization dated 5.4.2003 was held to be valid, it is not open to the respondent - Chairman to hold that the order of regularization was not valid. Consequently, service of the petitioner could not have been terminated by giving one month notice or wages in lieu thereof. Per-contra, learned counsel appearing for the respondent - Chairman tried to support the impugned order, however, he could not dispute the facts in so far as observation of this Court and the agreement that had taken place between the parties in the year 2009 are concerned. In such view of the matter, the reasoning given in the impugned orders that the order of regularization was illegal and was passed for extraneous reasons and was outcome of the ulterior motive is not sustainable in the eye of law and thus the impugned orders dated 13.11.2013 and 5.12.2013 passed by respondent No. 5, President, Nagar Panchayat Ekdil, district Etawah and respondent No. 6, Executive Officer, Nagar Panchayat, Ekdil district Etawah respectively are hereby quashed. The petitioner shall be entitled for all consequential benefits. This writ petition stands allowed. The petitioner shall be entitled for all consequential benefits. This writ petition stands allowed. No order as to costs.” 5. Learned counsel for the appellant submits that there was a ban imposed by the State Government on the appointments vide Government orders/circulars dated 17.11.1989, 11.2.1986 & 20.11.1990. Initially the respondent No. 1-petitioner was illegally engaged on daily wage basis on 16.8.1989. The regularization of the petitioner was made without following the procedures prescribed in U.P. Regularization of Daily Wages Appointment on Group D Posts, Rules, 2001. Learned Single Judge has failed to consider that Writ Petition Nos. 19280 of 1995, 45940 of 2003 and 16142 of 2004 were dismissed on 24.2.2006 and he has wrongly come to the conclusion that the petitioner was regularized in the service on 5.4.2003 and as such, this Court should come for rescue and reprieve to the petitioner. 6. Shri Rahul Jain, learned counsel for the respondent No. 1-petitioner, on the other hand, submits that the petitioner was engaged on 16.8.1989 as Pump Operator on daily wage basis in Nagar Panchayat, Ekdil, District Etawah. Earlier his services were terminated in the year 1991 and the matter was referred to the Labour Court, which had passed an award in his favour on 6.2.1995. After a long litigation, his services were regularized on 5.4.2003. Again he filed the Writ A No. 52766 of 2013 assailing the order dated 16.8.2013 by which he was shown as daily wage employee and the said writ petition was disposed of on 25.9.2013. In pursuance thereof, the claim of the petitioner was rejected on 13.11.2013 and his services were terminated on 5.12.2013. He had filed Writ A No. 4552 of 2014 and learned Single Judge has rightly allowed the writ petition on 9.3.2017 and the Special Appeal is liable to be dismissed. 7. Heard rival submission and perused the record. Record in question clearly reflects to us that respondent No. 1-petitioner was initially engaged as Pump Operator on daily wage basis on 16.8.1989 in Nagar Panchayat Ekdil, District Etawah and since then he is working in the department concerned with utmost sincerity and honesty. Record in question further reveals to us that on 11.6.1991 his services were dispensed with on the ground that his services were no more required in the department. Record in question further reveals to us that on 11.6.1991 his services were dispensed with on the ground that his services were no more required in the department. Against the said disengagement, he raised an industrial dispute before the Regional Conciliation Officer and thereafter the dispute was referred to the Labour Court (1), Kanpur for adjudication and the same was registered as Adjudication Case No. 148 of 1993. Finally an award dated 6.2.1995 was passed in favour of respondent No. 1-petitioner. The said award was again subjected to challenge by the department concerned by preferring Writ Petition No. 19280 of 1995. Meanwhile the petitioner had also two writ petitions being Writ Petitions No. 45940 2003 and 16142 of 2004 for regularization of his services and payment of salary. 8. As per record it appears that all the three writ petitions were dismissed on 24.2.2006 but meanwhile a compromise took place on 8.7.2009 between the parties in Adjudication Case No. 104 of 2003, whereby the employer had agreed to take back the petitioner-respondent in the service and vide order dated 5.4.2003 his services were also regularized. Consequently on the basis of compromise the aforesaid adjudication case was disposed of. It appears that the Executive Officer, Nagar Panchayat Ekdil had passed an order dated 16.8.2013 by which the respondent No. 1-petitioner was again shown as daily wage employee on the post of Pump Operator. The same was again subjected to challenge in Writ Petition No. 52766 of 2013, which was disposed of on 25.9.2013 directing the respondents to consider the claim of petitioner for payment of regular salary on the post of Pump Operator. Again his claim was turned down vide order dated 13.11.2013 on the ground that initial engagement of respondent No. 1-petitioner on daily wage basis in the year 1989 was illegal and as such, he could not be regularized in the year 2003. The said action of appellant was again subject-matter of challenge in Writ A No. 4552 of 2014 and learned Single Judge of this Court has proceeded to allow the writ petition on 9.3.2017 and set aside the orders dated 13.11.2013 and 5.12.2013 passed by the President, Nagar Panchayat Ekdil, District Etawah and the Executive Officer, Nagar Panchayat Ekdil, District Etawah. 9. 9. In the aforementioned facts and circumstances, we are of the considered opinion that once after a long litigation finally a compromise took place between the parties on 8.7.2009 in Adjudication Case No. 104 of 2003 and it had also been agreed that services of respondent No. 1-petitioner was liable to be regularized w.e.f. 5.4.2003, then the respondent authorities cannot take a decision at this stage that initial engagement of petitioner-respondent No. 1 was illegal. We are also of the considered opinion that under the aforesaid facts and circumstances the orders dated 13.11.2013 and 5.12.2013 passed by the President as well as Executive Officer of Nagar Panchayat Ekdil, District Etawah could not sustain and the same were rightly set aside by learned Single Judge. There is no infirmity or illegality in the order passed by learned Single Judge. 10. The Special Appeal sans merit and is accordingly dismissed.