Berly A. J. v. Chairman Kerala State Warehousing Corporation
2018-01-24
P.V.ASHA
body2018
DigiLaw.ai
JUDGMENT : P.V.Asha, J. Petitioners in these cases are challenging the orders of termination of their service from the post of Class-IV employees from the Kerala State Warehousing Corporation (herein after referred to as the Corporation for short). Parties and documents referred to are as described in W.P.(C) No.32655 of 2017, unless otherwise specified. 2. The petitioners were initially appointed on daily wages in the Corporation in the year 2002. While working so, the Board of Directors of the Corporation in its meeting held on 15.3.2006 passed resolution no.2531 to engage 110 daily waged hands like petitioners on contract basis for 6 years. They were accordingly appointed on contract basis for 6 years. While so there was a change in the Board of Directors. Seeing the illegality in the appointments, the new Board of Directors in its meeting held on 13.11.2006 resolved to terminate their services. The orders of termination were challenged before this Court in W.P.(C) No.5183 of 2007. This court by judgment dated 2.4.2007 [produced as Ext.R2(b)] dismissed the writ petition observing that public employment cannot be made on contract appointment on long term basis that too with the intention to put the daily rated workers on continuous engagement. Even though the petitioners took up the matter in W.A.No.2050 of 2007, that writ appeal was dismissed as per judgment dated 19.9.2007 [Ext.R2(c)]. The SLP preferred against it was also dismissed by the apex court on 9.1.2008 [Ext.R2(d)] 3. While so, some of those who had lost before this court, raised the question of their termination from service in industrial dispute and that was referred to the Labour Court which was numbered as ID No.41 of 2014. The management filed Ext.P1 written statement objecting to the claims raised by the workmen. However subsequently on the request of both parties, the matter was referred for mediation. In the mediation center, the parties arrived at Ext.P3 settlement, in which the Corporation agreed that there were vacancies in the post of Class IV Gr.II and the question of regularization of petitioners who were relieved from the Corporation as per the board decision dated 13.11.2006 was under consideration of Government. Hence Corporation undertook to consider the petitioners' appointment as per Government direction/Court direction. On production of the settlement, the Labour Court found that what survived thereafter was only to pass an award in terms of the memorandum of agreement entered between the parties.
Hence Corporation undertook to consider the petitioners' appointment as per Government direction/Court direction. On production of the settlement, the Labour Court found that what survived thereafter was only to pass an award in terms of the memorandum of agreement entered between the parties. Accordingly, Ext.P2 award dated 24.11.2014 was passed recording that the memorandum of agreement dated 15.10.2014 will form part of the award and that will take effect after one month from the date of pronouncement of the award. Thereafter Government issued Ext.P4 letter on 21.5.2015 referring to letters dated 27.5.2014 and 13.11.2014 from the Chairman of the Corporation informing the Managing Director that Government had agreed to the suggestion of the Chairman regarding the reinstatement of Class IV employees as per the award of Labour Court for preparing rank list to fill up the vacancies and to absorb the 14 award holders and to fill up existing vacancies from the rank list. The said letter was issued by one Mr.P.K.Mohanan, Dy.Secretary on behalf of Secretary to Government, who was one in the Board of Directors. 4. In the light of Ext.P4 letter of Government and the award of the Labour Court, the Board of Directors in its 277th meeting held on 11.6.2015 resolved to constitute a committee for conducting an interview and preparation of rank list to fill up the existing vacancies by appointing the contract Class IV employees who worked on contract basis during 2007. The Managing Director was authorised to appoint persons against the existing vacancies as per the recommendations of the said committee. Accordingly orders similar to Ext.P5 were issued on 10.08.2015 appointing 47 persons including the petitioners as Class IV Gr.II in the scale of pay of Rs.4510-6230. They were placed on probation for a period of one year from the date of joining duty. It was stated that they would be absorbed in regular service on successful completion of the probation period. Complaining delay in declaring probation even after completion of requisite period, petitioners submitted representations. Some of them approached this court also filing W.P.(C) No.16546 of 2017 and this court directed the 2nd respondent to pass orders on their representations. By Ext.P6 letter dated 28.6.2017 the 2nd respondent rejected the request of the 1st petitioner in W.P.(C) No.32655 of 2017.
Complaining delay in declaring probation even after completion of requisite period, petitioners submitted representations. Some of them approached this court also filing W.P.(C) No.16546 of 2017 and this court directed the 2nd respondent to pass orders on their representations. By Ext.P6 letter dated 28.6.2017 the 2nd respondent rejected the request of the 1st petitioner in W.P.(C) No.32655 of 2017. It was stated that the appointment itself was illegal, when the orders terminating their services in 2007 were already upheld by this court and the Apex Court. It was stated that the settlement between the then Managing Director and the employees produced before the Labour Court in an ID raised after a period of 7 years of the termination, was arrived at suppressing their termination from service and after misrepresenting the factual circumstances before the Government. It is stated that the Chairman had requested Government to accord sanction for reappointment of class IV employees retrenched during 2007, saying that there were 56 vacancies. Government agreed to the request for filling up the vacancies and to absorb the 14 persons who approached the Labor Court. 47 persons including petitioners were thereafter appointed from a rank list prepared after conducting an interview of the 'retrenched class IV' employees of 2007. Some of the employees who did not get such re-appointment in this process approached this court filing W.P. (C) No.23556 of 2017, which was disposed of with direction to Government to take a decision. On 13.3.2017 Government issued orders rejecting their request. It was also stated that the Principal Accountant General had in their draft compliance audit report submitted before the Additional Chief secretary reported that the appointments made from the rank list of the Class IV employees prepared by the then management were irregular and recommended termination of their services. It was stated that the finance inspection wing of the Finance Department had also found irregularities in those appointments in the report submitted by them. An enquiry was conducted by the Vigilance and Anti Corruption Bureau, Ernakulam also. In the above circumstances it was stated that the probation of petitioners cannot be declared. 5.
It was stated that the finance inspection wing of the Finance Department had also found irregularities in those appointments in the report submitted by them. An enquiry was conducted by the Vigilance and Anti Corruption Bureau, Ernakulam also. In the above circumstances it was stated that the probation of petitioners cannot be declared. 5. Subsequent to that the Board of Directors in its 283rd meeting held on 19.5.2017, as per resolution no.3251 decided to terminate the services of the 47 class IV employees who were given reappointment in the year 2015, seeing the illegality in the re-appointments made in violation of Clause 7 of General Staff Regulations of the Corporation, which provides that appointment of class IV employees shall be made through Employment Exchange. The decision of the previous Board of Directors to reappoint them was found to have been taken repeating the very same illegality. The Board therefore authorized the Managing Director to terminate all the illegal appointments after obtaining legal opinion. It was also stated that Government had also directed the Corporation to take immediate steps to cancel the appointments made in the Corporation referring to the irregularities pointed out in the report of the Principal Accountant General. Accordingly show cause notices like Ext.P7 were issued to the petitioners on 4.7.2017 proposing termination of their services and seeking their explanation. Petitioners thereupon challenged those show cause notices filing WP(C) No.23566 of 2017 and connected cases. During the pendency of that writ petition petitioners submitted their explanation. Corporation issued orders like Exts.P8 to P18 on 27.9.2017 confirming the proposal and terminating the services of the petitioners. These writ petitions are filed challenging those orders of termination mainly alleging that neither the Board of Directors or the Government can issue orders terminating their services when their appointments were made on the basis of the award passed by the Labour Court. It was pointed out that none of the respondents sought to challenge the award of the Labour Court and therefore the proceedings terminating their services are illegal. It is pointed out that the award was passed after the management had filed the written statement in which the decision of this court as well as the Supreme Court were mentioned. Therefore just because there was change in the ruling party or in the Board of Directors the respondents cannot review the decision overreaching the judicial orders. 6.
It is pointed out that the award was passed after the management had filed the written statement in which the decision of this court as well as the Supreme Court were mentioned. Therefore just because there was change in the ruling party or in the Board of Directors the respondents cannot review the decision overreaching the judicial orders. 6. The 2nd respondent filed a counter affidavit producing Ext.R2(a) order dated 3.2.2007 by which services of the petitioners were terminated, on the ground that appointments were made in violation clause 7(ii) of Chapter II of the Kerala State Warehousing Corporation Staff Regulation, 1963 (hereinafter referred to as ' the Regulation'), according to which appointments to Class IV is to be made through Employment Exchange. It is stated that petitioners were engaged on daily wages during the period from 2002 to 2006. In W.P.(C) No.21467 of 2003 the Division Bench of this Court had directed to relieve the daily waged employees if their engagement exceeded 90 days in total. It was also directed to conduct a due process of selection preferably as sponsored by Employment Exchange. The Corporation had relieved all the casual daily wage employees with effect from 23.7.2005. The Apex Court had in SLP Nos.16557 of 2005 and 15365 of 2005 stayed the operation of the order of the Division Bench. Accordingly, Class IV workers were reengaged in August 2005. While so, the Board of Directors in its 241st meeting resolved that those workers engaged on daily wages would be appointed on contract basis for 6 years; such contract appointments were made from 4.5.2006 onwards contrary to the regulations. In Ext.R2(a) order it was stated that the Chairman of the meeting had not signed the minutes of the 241st meeting held on 12.4.2006. However appointments were made on 4.5.2006 even without the approval of the minutes by the Chairman. It was made at a time when a list of more than 3000 persons were received from various Employment Exchanges based on the requisition from the Corporation. At that time there were 100 vacancies. The 242nd meeting of the Board of Directors held on 15.11.2006 found that the appointments were illegal. The Board thereupon authorized the Managing Director to take necessary action to terminate the services of the appointees after getting expert legal advice.
At that time there were 100 vacancies. The 242nd meeting of the Board of Directors held on 15.11.2006 found that the appointments were illegal. The Board thereupon authorized the Managing Director to take necessary action to terminate the services of the appointees after getting expert legal advice. On the basis of that decision, the Managing Director issued orders like Ext.R2(a) on 3.2.2007 terminating Class IV Gr.II employees like petitioners who were appointed on contract basis for 6 years with effect from 4.5.2006. That termination was under challenge in W.P.(C) No.5183 of 2007 and it was upheld by Ext.R2(b) judgment dated 2.4.2007. Even at that time persons like petitioners were allowed to continue till recruitment was made through Employment Exchange. This court found that contract appointments made on long term basis, in order to put the daily waged workers on continuous engagement, was unconstitutional. Recording the submission that petitioners would be allowed to continue till regular recruits join on selection through Employment Exchange or by other modes of transparent selection after proper advertisement, the writ petition was dismissed. In the judgment in W.A.No.2050 of 2007 filed against Ext.R2(b) judgment, the Division Bench also found the illegal process adopted in the contract appointments made for 6 years, being contrary to regulation 6 and 7 of the Regulations. It was found that the Board of directors had already decided to fill up the vacancies through Employment Exchange based on which 3000 applications were received. Division Bench also took note of the fact that the minutes of the meeting of the Board of Directors held on 12.4.2006 was not approved or signed by the Chairman. Therefore no statutory or constitutional violation was found in the termination. Later as per Ext.R2(d) judgment, the SLP filed against the writ appeal was also dismissed on 9.1.2008. It was thereafter that some of the petitioners took up the matter in ID, which led to Ext.P3 settlement and thereafter to Ext.P2 award, even though a written statement was filed raising the question of maintainability as the issue was already decided by this court and the Apex Court. It was stated that settlement itself was illegal and without authority. According to the 2nd respondent, Sri.G.Mohandas was the Chairman of the respondent Corporation at the time of the settlement and at the time when contract appointments were made in the year 2006 for a period of 6 years.
It was stated that settlement itself was illegal and without authority. According to the 2nd respondent, Sri.G.Mohandas was the Chairman of the respondent Corporation at the time of the settlement and at the time when contract appointments were made in the year 2006 for a period of 6 years. He had made the appointments in violation of clause 7(2) of Chapter II of the Staff Regulation and he took up the matter without sanction of the Board of Directors informing the Government that there were 56 vacancies of Class IV Gr.II employees existing in the Corporation and requested to accord sanction for reappointment of Class IV Gr.II the terminated employees during 2007. Government issued Ext.P4 letter dated 21.5.2015 accepting that request. It was further stated that Government had without any authority directed the Corporation to prepare the rank list to fill up the existing vacancies to absorb the award holders in violation of the procedure prescribed in the regulation. Accordingly 47 persons including the petitioners were reappointed from the rank list of terminated Class IV Gr.II employees. Some of the employees who did not get such reappointment along with petitioners in the year 2015 filed WP(C) No.24738 of 2016 seeking appointment as in the case of the petitioners and others and this court directed its consideration. 7. When the representation came up for consideration Government found that reappointment of Class IV Gr.II was made contrary to the staff regulation and accordingly rejected their request as per Ext.R2(e) order dated 18.3.2017. The award of the Labour Court happened to be passed only on the basis of the illegal settlement arrived at by the then Managing Director and the petitioners. Clause 12 (ii) of the Regulations provide for termination of service of an employee by the Board of Directors after expiry of the period of probation by giving him 3 months notice or pay in lieu thereof. The show cause notice as well as the order of termination was issued by the Managing Director on the basis of the resolution of the Board of Directors which met on 22.8.2017. 8. The 4th respondent- Government also filed a counter affidavit stating that the Corporation had terminated the services of 110 employees in Class IV from 3.2.2007, seeing the illegality in their appointments.
8. The 4th respondent- Government also filed a counter affidavit stating that the Corporation had terminated the services of 110 employees in Class IV from 3.2.2007, seeing the illegality in their appointments. Government had considered the claim of the persons who sought reappointment as in the case of petitioners when it was found that the entire proceedings leading to reappointment was illegal and by playing fraud on the Corporation as well as on public. It was stated that in the letter dated 13.11.2014 of the Chairman of the Corporation addressed to the Government and referred to in Ext.P4 letter nothing was stated regarding the litigation which upheld the termination of Class IV employees. On the other hand the Chairman asserted that the petitioners had got a claim for the post as per section 25H of the Industrial Disputes Act 1947. Producing Ext.R4(d) report of the Principal Accountant General and Ext.R4(e) letter of the Principal Secretary to Government, Agriculture Department recommending appropriate action to terminate the illegal appointments it was stated that the entire proceedings done by the Chairman and the Managing Director of the Corporation were for accommodating the petitioners by submitting false affidavit before the Labour Court in the fraudulent attempt of the then Managing Director who wanted to legalize their illegal appointment. In case the Labour Court had considered the matter on merit the result would not have been in favour of the petitioners and the matter was already considered by the Apex Court. 9. I heard M/S N. N.Sugunapalan, K.P.Satheesan and S. Sreekumar, learned Senior Counsel appearing for the petitioners in the respective cases, Sri.Majnu Komath appearing for the Corporation, Sri.S.P.Aravindakshan Pillai, appearing for the Chairman of the Corporation and Sri.Jaffer Khan, learned Government Pleader. 10. It was argued on behalf of the petitioners that the Board of Directors do not have any authority to vary the award passed by the Labour Court and that the orders of termination issued merely on the basis of change in the ruling party are liable to be set aside. It was also pointed out that appointments were made otherwise than through Employment Exchange subsequent to 2007 also and such appointees are continuing in service and the respondents did not take any action as done in the case of the petitioners. 11.
It was also pointed out that appointments were made otherwise than through Employment Exchange subsequent to 2007 also and such appointees are continuing in service and the respondents did not take any action as done in the case of the petitioners. 11. The learned Standing Counsel for the 2nd respondent submitted that class IV employees referred to by the petitioners are allowed to continue in service on the basis of the interim orders passed by this court. 12. The learned Government Pleader relied on the judgments of the Apex Court in S.P.Chengalvaraya Naidu v. Jagannath and others, (1994) 1 SCC 1 and argued that the petitioners who got appointment after playing fraud on the court are not entitled to any relief from this court. The judgment of the Apex Court in Umarani A. v. Registrar, Cooperative Societies and others, (2004) 7 SCC 112 , Executive Engineer, ZP Engg. Divn. And another v. Digambara Rao and others, (2004) 8 SCC 262 , Lazarus Estates Ltd. v. Beasley, (1956) 1 QB 702 , Punjab Water Supply & Sewerage Board v. Ranjodh Singh and others, (2007) 2 SCC 491 , Usha K.V. v. State of Kerala and others, 2008 1 KHC 191 , A.V.Papayya Sastry and others v. Government f A.P. And others, (2007) 4 SCC 221 , Delhi Development Horticulture Employees Union v. Delhi Administration, Delhi, (1992) 4 SCC 99 and P.V.Prakasini v. KPSC and others, 1993 KHC 209 were also relied on. The quick verification report furnished by the Dy. Superintendent of Police, Vigilance and Anti Corruption Bureau, Ernakulam pursuant to the order in CMP No.714 of 2012 of the Court of Enquiry Commissioner and Special Judge (Vigilance) Thrissur was also produced pointing out the irregularities in the reappointment of the petitioners by the previous Managing Director. 13. The contention of the petitioners is that the action of the respondents in terminating their services will amount to over reaching of the award passed by the Labour Court. But a reading of Ext.P2 award along with Ext.P3 settlement arrived at between the parties would show that the award was not passed on merits. The Labour Court was not called upon to decide any of the issues since the Managing Director of the respondent and the employees arrived at a settlement after getting it referred to mediation.
But a reading of Ext.P2 award along with Ext.P3 settlement arrived at between the parties would show that the award was not passed on merits. The Labour Court was not called upon to decide any of the issues since the Managing Director of the respondent and the employees arrived at a settlement after getting it referred to mediation. In that settlement the Managing Director stated that the matter of engagement of the petitioners were under consideration of Government. The Labour Court only recorded that settlement and passed the award treating it as part of the award. On 21.05.2015, one Mr.P.K.Mohanan, a Deputy Secretary, Agriculture (PU) Department issued Ext.P4 letter, (signed on behalf of Secretary to Government), referring to the letters dated 27.5.2014 and 13.11.2014 of the Managing Director agreeing to "the reinstatement of Class IV employees as per the award of the Labour Court for preparing rank list to fill up the vacancies and to absorb 14 award holders and to fill up the existing vacancies from the rank list". The award was passed on 24.11.2014. The letters referred to in Ext.P4 for agreeing for reinstatement of Class IV employees as per the Labour Court's award are those issued prior to the award. It is pointed out that the Deputy Secretary who signed the letter was a member of the then Director Board. Thus it would appear that the Dy.Secretary, who issued Ext.P4 letter, as well as the Managing Director of the 2nd respondent have worked together for re-appointment of persons like petitioners under the guise of implementation of Ext.P2 award, picturing the petitioners as retrenched hands entitled to benefits of Section 25H of the ID Act, without disclosing Exts.R2(b) to (d) judgments upholding the termination of their services in 2007. 14. Ext.R2(A) termination was ordered seeing that it was made in violation of Clause 7 of the Regulations. The respondents cannot be permitted to make any appointment contrary to the procedure prescribed in the regulations treating the petitioners as retrenched hands eligible for re-appointment. The settlement or the award cannot legalise the first appointment of the petitioners so as to confer a right on them for re-appointment. 15. As per regulation 7 of the General and Staff Regulations, 1963 the appointment to Class IV posts are to be made through Employment Exchange.
The settlement or the award cannot legalise the first appointment of the petitioners so as to confer a right on them for re-appointment. 15. As per regulation 7 of the General and Staff Regulations, 1963 the appointment to Class IV posts are to be made through Employment Exchange. Under rule 6(2), the appointing authority may appoint a sub committee for selection for drawing up a panel of names for the posts concerned for consideration of the appointing authority. Clause 3 of Regulation 7 provides that principles of reservation of appointments for SC/ST and other backward classes as applicable to appointments under the Government shall be followed in all appointments under the Corporation. This court had already found that persons like petitioners were originally appointed on daily wages and thereafter when there was a direction from this Court to make appointments through Employment Exchange, the respondents made appointments on contract basis for a period of 6 years, when there is no provision for making appointment on contract basis for such long periods. It was also found that such appointments were made at a time when the list of innumerable candidates from Employment Exchange was available that such illegal process was resorted to. The order of termination was issued in the year 2007, on being satisfied that the appointments of the petitioners were not made in accordance with rules but at the whims and fancies of the then board of directors/ Managing Director. 16. It is pertinent to note that the appointments on contract basis for a period of 6 years in the year 2006 as well as the re appointments in the year 2015 were made by the very same Managing Director. For the purpose of reappointment of petitioners a dubious method was adopted, taking up the matter in ID and getting it referred to the Labour Court and thereafter for mediation for arriving at a settlement, saying that their re-appointment is under consideration of Government; Deputy Secretary agreeing for re-appointment of award holders; constituting a committee to conduct selection from among those terminated from service; all in an attempt in order to protect the illegal appointments originally made in 2006 perpetuating the illegality already found in the judgments. 17.
17. The claim of the petitioners that they had already completed probation and their services were terminated at a time when they completed their probation do not deserve any special consideration as the very appointments of the petitioners were illegal. The fact that award of the Labour Court was not challenged, before a decision was taken by the Board of Directors to terminate the services of the petitioners will not also stand, since there was no judgment/award on merit. It is also pertinent to note that what was stated by the Managing Director in the letter addressed to the Government was that the petitioners/14 persons who approached the Labour Court were entitled to the benefit of section 25H of the Industrial Disputes Act against the existing vacancies. In that letter, the Managing Director suppressed the fact that the petitioners are not persons who were retrenched for want of vacancies but those who faced termination on account of the illegality in the appointment. In the light of the judgments relied on by the learned Government Pleader the action of the respondents do not require any interference. 18. In the judgment in Umarani's case apex Court held that Government does not have any power to issue orders directing regularization of employees who were appointed in fragrant violation of mandatory provisions in the Act and Rules. The Apex Court was considering the claim of employees of the Co-operative Societies in Tamilnadu appointed without notifying the vacancies to the Employment Exchange and without following the rules relating to recruitment. It was held that Article 162 of the Constitution is not attracted as the source of power of the State to pass orders for regularization of such appointments and that the power has to be traced to the provisions of the Act itself; in the absence of any such power under the Act the order of Government is a nullity. Similar is the present case where the regulation specifically provides for appointments through Employment Exchange and at the same time no power is conferred on the Board of Directors or the Government to make any appointment of Class IV employees contrary to the regulations and at any rate to make such 're-appointments'. The judgment of the Apex Court in Punjab Water Supply & Sewerage Board case, while considering validity of orders regularising contract appointees, also is to the same effect.
The judgment of the Apex Court in Punjab Water Supply & Sewerage Board case, while considering validity of orders regularising contract appointees, also is to the same effect. It was also held that no departmental letter or executive instruction will prevail over statutory rule or constitutional provision and that any appointment made without following procedure would be ultra vires. This court has also in the judgment in Usha K.V. v. State of Kerala and others, 2008 1 KHC 191 while considering the validity of the decision of Government to regularize 106 provisional employees in Kerala Transport Development Finance Corporation had held that such a decision is unconstitutional and ab initio void. It was also held therein that such decisions can be reviewed and set right when it is noticed. In paragraph 29 of the judgment, this court held as follows: "Consequently, where a decision taken by the Government is per se unconstitutional and therefore void, no irrevocability can be attributed to such order and it probably would be the constitutional obligation on the part of the executive Government to set right an infraction of law and constitutional provisions, which it had committed earlier. I also refer to the following decisions cited by the learned Advocate General in this context, wherein it has been held that administrative orders, can also be corrected if it is later found that such orders are vitiated by an error of law or of jurisdiction or that it is otherwise unconstitutional. (R.R. Verma v. Union of India, (1980) 2 SLR 335 , Sasidharan v. Reserve Bank of India, (1990) 2 KLT 573 , V. Prakasini v. K.P.S.C and Others, (1993) 1 KerLJ 632)" 19. In the judgment of this court P.V.Prakasini v. KPSC and others, 1993 KHC 209 this Court held that public authorities have power to correct apparent mistakes in orders even without a specific provision and by exercising such power, mistakes committed by itself can be corrected by the public authority in the interest of justice and to avoid arbitrariness. The 2nd respondent has by issuing the orders of termination rectified the mistake committed by the previous Board of Directors and the Managing Director. 20. In the judgment in A.V.Papayya Sastry and others v. Government of A.P. And others, (2007) 4 SCC 221 the Apex Court held that fraud and justice never dwell together.
The 2nd respondent has by issuing the orders of termination rectified the mistake committed by the previous Board of Directors and the Managing Director. 20. In the judgment in A.V.Papayya Sastry and others v. Government of A.P. And others, (2007) 4 SCC 221 the Apex Court held that fraud and justice never dwell together. In paragraphs 25 and 26 it was held as follows: 21. It has been said; Fraud and justice never dwell together (fraus et jus nunquam cohabitant); or fraud and deceit ought to benefit none (fraus et dolus nemini patrocinari debent). 22. Fraud may be defined as an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another. In fraud one gains at the loss of another. Even most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam. The principle of 'finality of litigation' cannot be stretched to the extent of an absurdity that it can be utilized as an engine of oppression by dishonest and fraudulent litigants. In the decision of Queens Bench at page 712 it was held that no court in this land has allowed a person to keep an advantage which he has obtained by fraud and that no judgment of a court can be allowed to stand if it has been obtained by fraud. Once fraud is proved it vitiates the judgments and all transactions. 23. Therefore even though there is no challenge to the award of the Labour Court, that the award passed by the Labour Court will not stand in the way of the subsequent Board of Directors in taking measures to correct the illegal actions carried out by the previous board of directors/Managing Director. 24. Even though the learned Senior counsel argued that in the absence of pleadings the allegation relating to fraud cannot be considered, it is found that the counter affidavit filed by 4th respondent explains the sequence of events right from 2002 and has alleged that reinstatement was made playing fraud. In Ext.R2(c) judgment in W.A.No.2010 of 2007, the Division Bench found that the Chairman had not signed the minutes of the meeting of Board of Directors held on 12.04.2006.
In Ext.R2(c) judgment in W.A.No.2010 of 2007, the Division Bench found that the Chairman had not signed the minutes of the meeting of Board of Directors held on 12.04.2006. The alleged decision to appoint the daily waged hands on contract basis for six years, was taken in that meeting. The action of the next Board of Directors in terminating the services of petitioners was found justified in Ext.R2(b) and in Ext.R2(c) judgments. The raising of industrial dispute after 7 years of the termination as well as after the judgments Exts.R2(b) to (d) upholding the same and entering into agreement to re-appoint the petitioners saying that the matter is under consideration of Government; misrepresenting before Government that the persons who approached the Labour Court were retrenched hands eligible for re-appointment under the Industrial Disputes Act; obtaining clearance from Government and agreeing for re-appointment as per Ext.P4 letter under the guise of implementation of the award, that too referring to letters sent even prior to the date of the award; the issuance of Ext.P4 letter by one of the members of the Board; the fact that the contract appointment made for 6 years which led to Ext.R2(a) termination order dated 03.02.2007, which was upheld by all the courts, as well as the settlement and re-appointment were made by the very same Managing Director who joined the Corporation again, would all show the foul play, suppressing the intervening events and the dubious practice adopted to perpetuate illegality, to protect vested interest. All this would show that reappointment was an act of fraud itself. The petitioners cannot be permitted to derive any benefit out of such fraudulent activities. 25. Even otherwise any appointment to an institution like 2nd respondent, if made contrary to the regulation will amount to fraud on public because public employment under the 2nd respondent is the property of the nation which is to be shared by the innumerable unemployed hands in the country in accordance with law. When the regulations govern the method to be adopted for appointment, then no appointment can be permitted to be made in violation of such regulations even under the guise of settlement or award. No illegality can be perpetuated at any cost. 26.
When the regulations govern the method to be adopted for appointment, then no appointment can be permitted to be made in violation of such regulations even under the guise of settlement or award. No illegality can be perpetuated at any cost. 26. Even assuming that the 2nd respondent has retained any person appointed otherwise than in accordance with the Regulations, as argued on behalf of the petitioners, it will not in way validate the illegal appointment/re-appointment of the petitioners. Since such appointments, if any, are not under challenge in these writ petitions, this court is not called upon to decide on it in this case. At any rate it will be incumbent on the 2nd respondent to act in accordance with rules. In the above circumstances, I do not find any reason to interfere with the orders passed by the 2nd respondent. Accordingly the writ petitions are dismissed.