Allahabad High Court
Hansraj vs Chairman U.P Power Corportion Ltd. ... on 7 November, 2019
Author: Abdul Moin
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 20 Case :- SERVICE SINGLE No. - 7856 of 2018 Petitioner :- Hansraj (dead) through legal representatives Respondent :- Chairman U.P Power Corportion Ltd. Shakti Bhawan Lko & Ors Counsel for Petitioner :- Jitendra Singh,Abhinav Singh Counsel for Respondent :- Vikrant Raghuvanshi With Case :- SERVICE SINGLE No. - 8030 of 2018 Petitioner :- Lal Ji Respondent :- Chairman U.P. Power Corporation Ltd. Lucknow And Others Counsel for Petitioner :- Jitendra Singh,Abhinav Singh Counsel for Respondent :- Vikrant Raghuvanshi,Vashu Deo Misra With Case :- SERVICE SINGLE No. - 7797 of 2018 Petitioner :- Sushil Kumar Srivastava Respondent :- Chairman U.P. Power Corporation Ltd. Lucknow And Ors. Counsel for Petitioner :- Jitendra Singh,Abhinav Singh Counsel for Respondent :- Vikrant Raguvanshi Hon'ble Abdul Moin,J.
1. Affidavit filed today by Sri Vasu Deo Mishra, learned counsel for the respondents/Corporation pursuant to the order of this Court dated 6.11.2019 bringing on record the counter affidavit which was filed on 13.1.2019 and was not traceable in the office, is taken on record.
2. At the very out set, Sri Vasu Deo Mishra, learned counsel for the respondents/Corporation contends that the regularisation policies as have been referred to in paragraph 14 of the counter affidavit, in fact, pertain to U.P. Regularization of Daily Wages Appointments of Group 'D' Post Rules, 2001 (hereinafter referred to as the 2001 Rules) which have been adopted by the Corporation and would govern the regularisation of the daily wagers working in the Corporation.
3. Heard Sri Abhinav Singh, learned counsel for the petitioners and Sri Vasu Deo Mishra, learned counsel appearing for the respondents/ Corporation.
4. It is admitted by the learned counsel for the parties that all these petitions raise common question of law and facts. As such they have been heard together and are being decided by this common judgment. The facts of Writ Petition (S/S) No. 7856 of 2018 are being noted for deciding all these petitions.
5. The petitioner in this writ petition namely Hansraj has died during pendency of the writ petition and is now represented by his legal heirs namely petitioners No.1/1 to 1/3.
6. Under challenge is the order dated 9.2.2018 passed by the respondent No.4 denying regularisation of Hansraj. Further prayer is for commanding the respondents to regularise the services of Hansraj on the post of Labour with effect from the date his juniors were regularised with all consequential benefits.
7. The case set forth in the writ petition is that Hansraj was appointed on the post of Labour on 24.6.1977 on muster roll. His services were terminated on 1.2.1979 aggrieved against which Hansraj raised an industrial dispute before the Labour Court which was registered as Adjudication Case No.201 of 1991. The Labour Court vide its award dated 29.5.1997, a copy of which is Annexure-2 to the writ petition, after recording that Hansraj had been appointed on 24.6.1977 and had worked up to 31.1.1979, gave an award that the termination of Hansraj was illegal and thus the termination order was set-aside and Hansraj was directed to be reinstated in service. However, no salary for the intervening period was held admissible to the workman/Hansraj. Being aggrieved with the said award, the respondents filed Writ Petition (S/S) No.1963 of 1998 In re: U.P. State Electricity Board vs. Sri Hansraj and others and this Court vide order dated 11.7.1998, a copy of which is Annexure-3 to the petition, directed the Corporation to allow the workman to work and salary be paid. It is contended that in pursuance thereof Hansraj was reinstated and continued in service. Subsequently, the writ petition itself was dismissed on merits vide order dated 31.8.2017, a copy of which is Annexure-4 to the writ petition, meaning thereby that the award dated 29.5.1997 was affirmed. When Hansraj was not regularised and at the same time certain juniors were regularised, he preferred Writ Petition (S/S) No.6357 of 2017 In re: Hansraj vs. Chairman, U.P. Power Corporation Limited claiming the benefit of the judgment and order dated 3.11.2016 passed in Writ Petition (S/S) No.964 of 2014 and judgment and order dated 2.2.2017 passed in Special Appeal No.37 of 2017 which pertained to a person similarly circumstanced namely Sri Kuldeep Lal whose claim for regularisation had been allowed by the Court. This Court vide judgment and order dated 20.4.2017, a copy of which is Annexure-10 to the writ petition, disposed of the writ petition with a direction to the respondents to consider the matter of Hansraj as to whether he is entitled to the benefits of the aforesaid judgment and the relief granted therein and to take appropriate decision in the matter. In pursuance thereof, the respondents considered the case of Hansraj vis a vis Sri Kuldeep Lal and rejected the claim of Hansraj vide impugned order dated 9.2.2018. Being aggrieved with the impugned order, present petition has been filed.
8. Learned counsel for the petitioner contends that the impugned order dated 9.2.2018 reflects patent non application of mind inasmuch as despite Sri Kuldeep Lal being similarly circumstanced i.e. having an award in his favour dated 29.5.1997, which had been affirmed by this Court with the dismissal of the writ petition filed by the respondents/Corporation, and thereafter Sri Kuldeep Lal had been regularised with effect from 3.5.2002 as would be apparent from a perusal of the order dated 12.5.2017, a copy of which is Annexure-9 to the writ petition, by which the pay fixation of Sri Kuldeep Lal had been done, and thus it is contended that the respondents have wrongly proceeded to distinguish the case of Hansraj with that of Sri Kuldeep Lal and at the same time rejected his claim for regularisation. It is also contended that juniors to Hansraj, as detailed in paragraph 30 of the writ petition, have been regularised while Hansraj has not been regularised. Placing reliance on the averments made in paragraph 14 of the counter affidavit, learned counsel for the petitioner contends that the respondents have indicated in paragraph 14 of the counter affidavit that as per the policy of the power corporation only muster roll workers were regularised who had been continuously employed as muster roll up to 1996 and 1999 but as Hansraj was out of service from 1.2.1979 to 1998 hence he was not entitled for regularisation. It is contended that the said averment is patently wrong inasmuch as once the Labour Court vide its award dated 29.5.1997 had reinstated Hansraj after setting aside the termination, consequently taking into consideration the law laid down by the Apex Court in the case of Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya and others reported in (2013)10 SCC 324 wherein the word "reinstatement" has been interpreted to mean- to reinstall or reestablish (a person or thing in a place, station, condition etc.) or to restore to its proper or original state, meaning thereby that the idea of restoring an employee to a position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. Thus it is contended that the impugned order passed by the respondents dated 9.2.2018 reflects patent non application of mind to the relevant facts of the case and once the award dated 29.5.1997 had attained finality, Hansraj would be deemed to have been continued in service from the date of his appointment i.e. 24.6.1977 and thus would be entitled for the benefit of regularisation.
9. On the other hand, learned counsel for the respondents/Corporation submits that the date of appointment of Hansraj i.e. 24.6.1977 is itself not certain as would be apparent from a perusal of the award of the Labour Court dated 29.5.1997. Even otherwise, the Labour Court did not award any continuity of service to Hansraj while setting aside the termination order and thus once Hansraj was only allowed to start work in pursuance of the interim order of this Court dated 11.7.1998, thus he cannot be said to have continuously worked on muster roll up to 1999 rather was out of employment from 1.2.1979 to 1998 and accordingly the judgment in the case of Sri Kuldeep Lal would be distinguishable and Hansraj would not be entitled for regularisation. Sri Mishra further submits that case of Hansraj is not covered for regularisation under the 2001 Rules.
10. In support of his arguments, learned counsel for the respondents has placed reliance on the following judgments:-
(i) Service Single No.3575 of 1993 In re: U.P. State Electricity Board Raebareli vs. Presiding Officer Industrial Tribunal, Lucknow and another decided on 25.9.2014.
(ii) National Fertilizers Ltd. & others vs. Somvir Singh reported in 2006(3) LBESR 147 (SC).
(iii) Secretary, State of Karnataka and others vs. Uma Devi and others reported in 2006(3) LBESR 260 (SC).
11. Heard learned counsel for the parties and perused the record.
12. From the arguments as raised by learned counsel for the parties and the pleadings on record, it clearly comes out that the Labour Court vide award dated 29.5.1997 had given a finding that Hansraj, who had been appointed on 24.6.1977 and whose services had been terminated on 31.1.1979, as per the list given by the employer, had wrongly been terminated as prior to his termination he had rendered 240 days of service. In this view of the matter the termination order of Hansraj was set-aside and Hansraj was directed to be reinstated in service. However, back wages were not granted to Hansraj. When the respondents filed Writ Petition (S/S) No.1963 of 1998, aggrieved against the award of the Labour Court, this Court vide order dated 11.5.1998 permitted Hansraj to be allowed to work and salary was also directed to be paid to him. The said writ petition was finally dismissed through judgment and order dated 31.8.1998, meaning thereby the award of the Labour Court dated 29.5.1997 attained finality. When the regularisation of Hansraj was not considered, he preferred writ petition (S/S) No.6357 of 2017 and the respondents were directed to consider as to whether Hansraj was entitled for the benefit of the judgment of this Court in the case of Kuldeep Lal passed in Writ Petition (S/S) No.964 of 2014 and the special appeal filed thereform. The respondents vide order dated 9.2.2018 have rejected the claim of Hansraj on the ground of his case being distinguishable from that of Kuldeep Lal. The grounds taken for distinguishing the case of Kuldeep Lal with Hansraj are that the judgment and order dated 3.11.2016 in the case of Kuldeep Lal was passed in different circumstances, the writ petition in the case of Kuldeep Lal had been allowed in absence of counter affidavit and that as no counter affidavit was filed in the writ petition of Kuldeep Lal, consequently the Corporation could not indicate the Constitution Bench judgment of the Apex Court and thus it was decided that as the judgment in the case of Kuldeep Lal has been passed in different circumstances, Hansraj is not entitled for the benefit of the said judgment.
13. A perusal of the impugned order dated 9.2.2018 when read with paragraph 14 of the counter affidavit filed by the respondents, would indicate that the claim of regularisation of Hansraj has been rejected on the ground that Hansraj was not in service from 1.2.1979 to 1998 and therefore not entitled for regularisation as per the regularisation policy of the year 1996 and 1999. The regularisation policy is stated to be the 2001 Rules. However, the facts are otherwise inasmuch as the Labour Court vide award dated 29.5.1997 had set-aside the termination order and directed reinstatement of Hansraj. The Apex Court in the case of Deepali Gundu Surwase (supra) has considered the word "reinstatement" and has held as under:-
"21. The word "reinstatement" has not been defined in the Act and the Rules. As per Shorter Oxford English Dictionary, Vol.II, 3rd Edition, the word "reinstate" means to reinstall or re-establish (a person or thing in a place, station, condition, etc.); to restore to its proper or original state; to reinstate afresh and the word "reinstatement" means the action of reinstating; re-establishment. As per Law Lexicon, 2nd Edition, the word "reinstate" means to reinstall; to re-establish; to place again in a former state, condition or office; to restore to a state or position from which the object or person had been removed and the word "reinstatement" means establishing in former condition, position or authority (as) reinstatement of a deposed prince. As per Merriam Webster Dictionary, the word "reinstate" means to place again (as in possession or in a former position), to restore to a previous effective state. As per Black's Law Dictionary, 6th Edition, "reinstatement" means:
"To reinstall, to re-establish, to place again in a former state, condition, or office; to restore to a state or position from which the object or person had been removed."
22. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer employee relationship, the latter's source of income gets dried up. Not only the concerned employee, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi judicial body or Court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. Denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the employee concerned and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments."
14. A perusal of the judgment of the Apex Court in the case of Deepali Gundu Surwase (supra) thus indicates that the Apex Court has held that reinstatement entails being put back in a former state, condition or office. Thus the award of the Labour Court dated 29.5.1997, once it directed for reinstatement of Hansraj would entail Hansraj being reinstated in service, meaning thereby his service would be treated with effect from 24.6.1977 itself. The Labour Court only deprived Hansraj of back wages and thus in the absence of Hansraj having not challenged the award of Labour Court, would not be entitled for any back wages but then reinstatement would mean being in service with effect from 24.6.1977. The award of the Labour Court has already been affirmed by this Court with the dismissal of the writ petition filed by the respondents/Corporation on 31.8.1997. The natural corollary of the award having been affirmed would be the reinstatement of Hansraj having been affirmed. Thus service of Hansraj would be with effect from 24.6.1977. Accordingly the stand taken by the respondent in paragraph 14 of the counter affidavit that as Hansraj was not in service from 1.2.1979 to 1998 so as to entail him for being considered for regularisation is thus patently misconceived and cannot be said to be a valid ground for rejection of the claim of Hansraj for regularisation. Further, the impugned order passed by the respondents dated 9.2.2018 only distinguishes the claim of Hansraj viz a viz Sri Kuldeep Lal but then even Sri Kuldeep Lal had an award in his favour and if in the writ petition no counter affidavit had been filed by the respondents/Corporation, yet the said judgment was also affirmed on a challenge being raised by the Corporation by filing Special Appeal (D) No.37 of 2017. As such, the case of Hansraj cannot be allowed to be distinguished on the ground that the judgment was passed in different circumstances. It is also not denied by the respondents that Sri Kuldeep Lal had been regularised with effect from 3.5.2002 which clearly comes out from a perusal of the order dated 12.5.12017 by which the pay fixation had been given to Sri Kuldeep Lal.
15. So far as the contention of the learned counsel for the respondents that the regularisation of Hansraj would be governed by the 2001 Rules, suffice to state that according to Rule 4 of the 2001 Rules any person who was directly appointed on daily wage basis on a Group ''D' post in the Government Service before June 29, 1991 and is continuing in service as such on the date of commencement of the rules i.e. 21.12.2001 would be entitled for regularisation. As such, the case of Hansraj, who was appointed on 24.6.1977 and was also continuing on the date of commencement of the 2001 Rules i.e. 21.12.2001 was entitled for regularisation in accordance with the 2001 Rules.
15. So far as the judgment in the case of U.P. State Electricity Board Raebareli (supra), as relied by the learned counsel for the respondents, is concerned, the same is distinguishable inasmuch as the same pertains to the Industrial Tribunal holding the workman entitled for regularisation. The same is not the case in the present case as no order for regularisation has been issued by the Labour Court. So far as the judgment of the Apex Court in the case of National Fertilizers Limited (supra) is concerned, the same was a matter pertaining to regularisation of services of contractual employee appointed in violation of prescribed procedure. The same is not the case here as the respondents have not disputed the appointment of Hansraj, as such the said judgment is also distinguishable. So far as the judgment of the Apex Court in the case of Uma Devi (supra) is concerned, the same would have no applicability in the facts of the instant case inasmuch as the claim of Hansraj has not been rejected on the ground of there being no regularisation rules, rather it has been rejected on the ground that Hansraj has not been in service during the relevant period.
16. Taking into consideration the aforesaid discussion, all the writ petitions are allowed. The impugned order dated 9.2.2018 (Annexure-1 to the writ petition) cannot be sustained and is hereby quashed. A writ of mandamus is issued commanding the respondents to consider the case of petitioners for regularisation on any suitable post treating date of initial appointment to be of 1977 (in the case of Hansraj and Lalji) and 1985 (in the case of Sushil Kumar Srivastava) and considering that similarly circumstanced persons more particularly Sri Kuldeep Lal has been regularised. Let such consideration be passed within a period of three months from the date of receipt of a certified copy of this order. Needless to mention that in case the services of the petitioners are regularised, consequences would follow.
Order Date :- 7.11.2019 Rakesh (Abdul Moin, J.)