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2024 DIGILAW 876 (AP)

N. Appala Raju v. Union Of India

2024-07-30

VENKATESWARLU NIMMAGADDA

body2024
ORDER : 1. This writ petition is filed claiming the following relief: “…To issue an appropriate Writ, order or direction more particularly one in the nature of Certiorari calling for the records relating to the award dated 29.01.2019 passed in I.D.No.42/2009 by the 2nd Respondent notified by the 1st Respondent in Notification No.L-34011/2/2009-IR (B-II), dated 21.02.2019 and consequently seeking a direction to set aside the same with a direction to the 3rd Respondent to reinstate the petitioner with all back wages and other statutory benefits from the date of the illegal termination till the date of reinstatement and pass such order or orders...” 2. The case of the petitioner is as follows: 3. The petitioner herein joined in the service at Respondent No.3 Society on 20.12.1994 and he has been worked as Sweeper cum Sanitary and attendar continuously without any remarks till 2008. While so, to the utter surprise of the petitioner, Respondent No.3 issued order of termination to the petitioner without following due procedure as contemplated under the law. Later, the petitioner keep on submitting his representations to the Respondent No.3 Society on 22.04.2008 and to i) the District Educational Officer, Visakhapatnam District, ii) the Deputy Commissioner of Labour, Akkayyapalem, Visakhapatnam, iii) the Assistant Labour Commissioner (Central), Maharanipeta, Visakhapatnam on 06.05.2008, 07.05.2008 and 26.05.2008 respectively for redressal of his grievances. 4. It is further stated that without considering the candidature/seniority of the petitioner, the Respondent No.3 Society regularised the services of similarly situated persons i.e. i) Sri D. Laxmana Rao and ii) Smt. B. Samadanam as Sweeper cum sanitary attenders, who are five years juniors to the petitioner. 5. It is further stated that pursuant to the representation of the petitioner, the Assistant Labour Commissioner (Central), Visakhapatnam, initiated conciliation proceedings between the Commissioner and the Management. But due to the divergent views of the parties, the conciliation proceedings were closed as having ended in failure. Based on the failed conciliation dated 14.11.2008, the Assistant Labour Commissioner (Central) referred the grievances of the petitioner to Respondent No.1 for adjudication vide Letter No.16/25/2008-ALC, dated 04.05.2009. In turn, the Respondent No.1 referred the same to Respondent No.2 vide order dated 12.10.2009 under Section 10(1)(d) of Industrial Dispute Act for adjudication as well as to pass appropriate orders. Pursuant to the reference to Respondent No.2, it was registered as I.D.No.42 of 2009. In turn, the Respondent No.1 referred the same to Respondent No.2 vide order dated 12.10.2009 under Section 10(1)(d) of Industrial Dispute Act for adjudication as well as to pass appropriate orders. Pursuant to the reference to Respondent No.2, it was registered as I.D.No.42 of 2009. Then, Respondent No.2 conducted detailed enquiry and by way of Summary procedure in compliance of the provisions of the Act passed an Award which was notified by gazette on 29.01.2019 as under: “The action of the management of Visakhapatnam Port Trust Educational Society, Visakhapatnam in terminating the services of Sh.N.Appala Raju, w.e.f. 06.12.2007 is not legal and justified.” 6. Learned counsel for Respondent No.3 filed a Counter affidavit on behalf of Respondent No.3/VPT Educational Society, Visakhapatnam District, wherein it is stated that during the month of July 2003, the Head Master of Port High School, Malkapuram while working under the control of Visakhapatnam Port Educational Society has requested the management for providing a sanitary labour for cleaning and sanitary works in the school building to maintain hygiene and thereafter the Management instructed the Head Master to engage any labour available in the locality for sanitation work of the school on daily payment basis as a temporary measure. Since there is no sanctioned post regarding the sanitary work under the Visakhapatnam Port Educational Society as the sanitary work is generally attended by the Port Sanitary Staff. Accordingly, the Head Master of Port High School, Malkapuram entrusted the work to the Petitioner on daily payment basis at the rate of Rs.60/- per day. 7. It is further stated that when the Head Master tried to pay the remuneration in cash, the Petitioner refused to take such remuneration in cash for October, 2007 and November, 2007 and thereafter i.e. from 01.12.2007, the Petitioner who was engaged on daily wage basis has voluntarily stopped from attending the sanitation work in the school without any intimation to the Respondents, then after waiting for 14 days i.e. upto 14.12.2007, having no other option the Head Master had engaged another sanitary labour from 15.12.2007 to attend the sanitary work by way of cash payment on daily basis. 8. 8. It is further submitted that the request of the petitioner for regular payment cannot be considered as he was engaged temporarily on daily wage basis and not on the rolls of Visakhapatnam Port Educational Society, as there is no sanctioned post for sanitary work since the sanitation of Visakhapatnam Port Trust areas and buildings are normally attended by Visakhapatnam Port Trust Sanitary Division Staff and the temporary sanitary labour engaged for sanitation works had already been discontinued since Visakhapatnam Port sanitary division staff started attending the sanitary work of school as well as their other offices. 9. It is further submitted that in reply to Para-4 of the writ affidavit that the Petitioner stated that he worked for 12 years and the Petitioner Society illegally regularized two persons viz., Sri D. Laxmana Rao and Smt. B. Samadanam as Sweeper Cum Sanitary as Attenders and that they are five years juniors to the petitioner and that the Respondent without verifying / considering the seniority of the Petitioner, regularized two juniors is not true and correct. It is submitted that the petitioner’s contention that he has worked for 12 years under the Respondent No.3 Society is not correct. 10. It is further stated that the claim of the petitioner is not maintainable and not in accordance with law, as such he is not entitled to any relief more particularly as prayed and accordingly to reject the claim of the Petitioner and also informed that there is no termination on part of the Respondent No.3 but the petitioner has been worked from July, 2003 to November, 2007 for a period of four years as a temporary sanitation labourer on daily wage basis. Moreover, the petitioner voluntarily chosen not to attend to the work and without any intimation voluntarily stopped from attending the sanitation work from 01.12.2007 onwards. 11. Learned counsel for the petitioner submits that the Court below after dealing with the contents raised by the petitioner and on perusal of the material placed and after considering the reply and contentions made by the Respondent Authorities and after detailed adjudication, the Respondent No.2 came to a conclusion that the action of the management of Respondent No.3 in terminating the services of the petitioner with effect from 16.12.2007 is not legal and justified. Having held the impugned action of the Respondents in issuing termination proceedings as illegal, arbitrary and unjustifiable. Having held the impugned action of the Respondents in issuing termination proceedings as illegal, arbitrary and unjustifiable. The consequential action is in relation to the findings should be reinstatement of the petitioner apart from granting terminal benefits as entitled as per Section 25 F of the Industrial Disputes Act, 1947. As such the Respondent No.1 ought to have directed the Respondents to reinstate the petitioner pursuant to its conclusive finding that the action of termination as illegal and unjustifiable. He further submits that having granted terminal benefits under Section 25 F of I.D. Act, 1947 but denying the reinstatement of Service is an error apparent on the face of the record on the file of Respondent No.2. He further drawn the attention of this Court in respect of scheme of the Act as well as entire discussion and findings of the Court below. Therefore, the Court below denied the benefit of reinstatement and granting terminal benefits under Section 25 F of I.D. Act, 1947 is the contrary to its own discussion and findings. Therefore, award dated 29.01.2019 passed in I.D.No.42 of 2009 which was notified by way of Gazette notification dated 21.02.2019 are liable to be set-aside. 12. Learned counsel for the petitioner further submits that the Respondent No.3 erroneously regularized the services of juniors to the petitioner who are also similarly situated and discharging similar duties as Sweeper cum Sanitary Attendar at the Respondent No.3 institution which is nothing but discrimination against the petitioner and in violation of Article 14 of the Constitution of India. He further submits that the Respondents neither adduced any evidence, filed any documents nor proceeded with hearing of the case and the petitioner was not cross examined by the Respondents. It is further observed that even as admitted by the Respondents, the petitioner worked for a period of four years and he should not be terminated without following due procedure and in violation of principles of natural justice. It was also admitted the nature of work at Respondent No.3 is a continuous necessary work. 13. Learned Standing Counsel for Respondent No.3 reiterated the contentions as stated in his counter affidavit. He further submits that since there is no sanction post for sanitation work, the petitioner services cannot be continued and the petitioner himself voluntarily stopped attending school for running services. 13. Learned Standing Counsel for Respondent No.3 reiterated the contentions as stated in his counter affidavit. He further submits that since there is no sanction post for sanitation work, the petitioner services cannot be continued and the petitioner himself voluntarily stopped attending school for running services. He further submits that the Respondent No.3 Society surrender the educational institutions to the Government of Andhra Pradesh pursuant to the G.O.Ms.No.42, Higher Education (C.E) Department, 10.08.2021. Therefore, the Respondent No.3 neither in existence nor can be implemented any order, if passed against the Respondent No.3. 14. Learned Standing Counsel for Respondent No.3 further submits that the Respondent engaged the services of the petitioner as daily wage worker due to the same and non compliance of the principles of natural justice, the Respondent No.2 rightly granted terminal benefits under Section 25 of the I.D Act and denied the reinstatement as well as continuity of services of the petitioner. Therefore, the order of the Respondent No.2 does not amenable to interference by this Court. 15. Heard the learned counsel for the petitioner, learned Standing Counsel for Respondent No.3 and perused the material placed on record. 16. On perusal of the orders of the Court below, the Court below categorically observed that the petitioner has filed his claim petition with a prayer to direct the Respondents to reinstate the petitioner with all back wages and other statutory benefits including regularization of his services. 17. It is further observed that by way of finding it is held that during the course of trial the Petitioner workman was examined as WWI and he also relied on 16 documents which were marked as Ex.W1 to W16. The Respondent neither had examined any witness nor participated at the time of trial of the case and the petitioner was also not been cross examined by the Respondent. It is further observed that when the workman had been worked for years together he shall be terminated by following due procedure only. Admittedly, the petitioner worked for a period of more than four years. It is further observed that when the workman had been worked for years together he shall be terminated by following due procedure only. Admittedly, the petitioner worked for a period of more than four years. Moreover, the sanitation work at Respondent No.3 is of perennial in nature and the Respondent also admitted that in absence of any sanitary attender they are unable to manage the sanitation work, which clearly indicates that the petitioner had been worked for more than 240 days in a year in all the four years when he was allowed rendering services. While terminating the service of the Petitioner the Respondent should have issued termination notice to the workman as contemplated. But the fact remains that the Respondent did not comply the same. When the Respondent had terminated the service of the Petitioner orally without giving any notice, and when the Respondent did not come forward to challenge the claim of the petitioner, the unchallenged testimony of the workman clearly proves that the petitioner would be entitled the benefits as claimed by him in his claim petition. Thus, the Petitioner workman is not only entitled to get the termination benefits as provided under Sec.25F of the Industrial Disputes Act, 1947 and also other reliefs. Therefore, this Court would safely decide that the termination of the petitioner workman is illegal and not justified. 18. It is further observed that the Respondents had engaged some other person i.e.Sri K. Ramu for sanitation works at the School after the petitioner’s termination. Therefore, the petitioner is not entitled to get back wages during the above period and the petitioner would be entitled the termination benefits as per Section 25 F of the Industrial Disputes Act, 1947 and rejecting the claim of the petitioner for reinstatement as well as the continuity of services with all back wages is contrary to the facts on record as well as its own finding as extracted above. 19. The Court below proceeded further and denied the claim of the petitioner for reinstatement and continuity of service on the ground that after termination of the petitioner, the third party was engaged and he has been continuing the services, as such the petitioner is not entitled for reinstatement and continuity of services with all back wages is erroneous and contrary to the record as well as its own conclusion. For the reason, continuing the services of the petitioner through another person itself indicates that there is a continuous necessity of subject work at Respondent No.3 institution. 20. Having observed the third person has been continuing for all these years and denying the relief claimed by the petitioner is contrary to the law and also contrary to on facts as well as settled proposition of law. 21. The other contention of the learned Standing Counsel for Respondent No.3 regarding surrender of the institutions to the Government of Andhra Pradesh pursuant to the G.O.Ms.No.42, Higher Education (C.E.) Department, dated 10.08.2021 is not a issue before Respondent No.2, since the said cause of action was not germane at the time of adjudication. Therefore, the rejection of claim of the petitioner for reinstatement and continuity of service is an error apparent on the face of the record. 22. The contention of the learned counsel for the Respondents that in the absence of existence of institution, the relief claimed by the petitioner is not implementable and it is out of control of Respondent No.3 cannot be accepted, for the reason the writ petition is filed in the month of February 2021 challenging the order of the Tribunal dated 29.01.2019 and by that date the G.O.Ms.No.42 was not all came into effect. Therefore, Respondent No.3 should have been addressed the issue of services of the petitioner, since the writ petition is pending much before to the surrender of the institution to the Government of Andhra Pradesh. Therefore, now the Respondents cannot express its inability in view of the non existence of Respondent No.3 institution on the ground that the institution itself surrendered to the Government and on that Ground the petitioner cannot be deprived of his claim of reinstatement as well as continuity of service. 23. Once the Court below finds the petitioner is entitled for relief of reinstatement as well as continuity of service but denied due to the third party in service and said issue is still pending before this Court any action of surrender of institution to the Government of Andhra Pradesh is subjected to the result of writ petition only. Since the entire action of surrender of institution was taken place after filing of this writ petition. Since the entire action of surrender of institution was taken place after filing of this writ petition. Therefore, the Respondent No.3 cannot canvass that the petitioner is not entitled for any claim of reinstatement as well as continuity of services due to non existence of institution. 24. Being a welfare State, the Government of Andhra Pradesh cannot deny the rights of petitioner on the ground that the Respondent No.3 already surrendered the institution without intimating either the pending of writ petition or claim of the petitioner herein already settled at Court below. 25. In view of the above analysis and due to the facts and circumstances as narrated above the petitioner is entitled for reinstatement as well as continuity of service without back wages and the claim of Respondent No.3 that institution was not at all in existence and it was already merged with the Government is liable to be rejected. 26. Accordingly, the writ petition is allowed-in-part and the Award orders of the Court below dated 29.01.2019 passed in I.D.No.42 of 2019 by Respondent No.2 and the Gazzette Notification notified by Respondent No.1 dated 21.02.2019 are hereby set-aside to the extent of termination and not granting reinstatement and continuity of service. 27. Further, Respondent No.3 and the Government of Andhra Pradesh, in whose favour institution was surrendered, are directed to take steps for reinstatement as well as continuity of service of the petitioner in accordance with law along with all consequential attendant benefits except back wages within a period of three months from the date of receipt of a copy of this order. There shall be no order as to costs. 28. Consequently, Miscellaneous Petitions, if any, pending in the writ petition shall also stand closed.