Allahabad High Court
Mohd. Zahir Alam vs M.D. U.P. Industrial Ltd. And Others on 15 February, 2019
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD (A.F.R.) Court No. - 34 Case :- WRIT - A No. - 31602 of 2002 Petitioner :- Mohd. Zahir Alam Respondent :- M.D. U.P. Industrial Ltd. And Others Counsel for Petitioner :- S.P. Sharma Counsel for Respondent :- C.S.C.,Dhananjay Awasthi Hon'ble Sudhir Agarwal,J.
1. Heard Sri S.P. Sharma, learned counsel for petitioner. None appeared for respondents.
2. This writ petition under Article 226 of Constitution of India has been filed assailing order dated 16.11.1999 (Annexure-17 to the writ petition) passed by Chairman, U.P. Industrial Cooperative Association, Kanpur (hereinafter referred to as "UPICA") cancelling its earlier order dated 28.08.1998. A mandamus is also prayed directing respondents to pay arrears of salary to petitioner treating him as regularly appointed employee of UPICA in compliance of award dated 14.11.1994 of Industrial Tribunal (I), U.P. Allahabad (hereinafter referred to as "Tribunal") and order dated 28.08.1998 of Chairman, UPICA. Subsequently, by way of amendment, a prayer has been added seeking a writ of mandamus commanding respondents to consider claim of petitioner as regularly appointed employee of UPICA in accordance with U.P. Cooperative Institutional Service Board Regulations, 1985 (hereinafter referred to as "Regulations, 1985").
3. Facts in brief, giving rise to the present writ petition, are that petitioner was appointed as Salesman on daily wage basis in UPICA on 01.03.1984 and posted in its showroom at Allahabad. He was terminated on 31.07.1987 whereagainst an industrial dispute was raised by petitioner which was referred for adjudication before Tribunal, registered as Adjudication Case No. 148 of 1992. Vide award dated 14.11.1994, Tribunal has held that termination of petitioner amounts to retrenchment and since procedure for retrenchment was not followed, therefore, termination was not legal. Operative part of award dated 14.11.1994 reads as under:-
"10. In view of what has been discussed and observed above the termination of services of Sri Jaheer Alam with effect from 31.7.1987 is held to be illegal. This being so, the same is set aside. Sri Jaheer Alam is treated to be in continuous service from the said date of termination and he is allowed to be reinstated with all the benefits including back wages and other allowances from the date of termination till the actual date of reinstatement. The employers are directed to comply with these directions within thirty days from the date of publication of this award. There will, however, be no order as to costs."
4. Employer i.e. UPICA filed Writ Petition No. 8026 of 1995 challenging aforesaid award but the same was dismissed by this Court vide judgment dated 19.03.1997. Consequently, vide order dated 01.05.1997 passed by Managing Director, UPICA, Kanpur, petitioner was re-employed from the date of his termination i.e. 31.03.1987. Petitioner submitted his joining on 07.05.1997.
5. Petitioner then made a representation claiming regularization on the ground that some other employees were regularized vide order dated 18.02.1992 whereupon Chairman, UPICA passed an order on 28.08.1998 observing that petitioner is entitled for regularization. Order dated 28.08.1998, however, was not executed/implemented, hence, petitioner came to this Court in Writ Petition No. 18947 of 1999 wherein this Court held that for execution of award, writ petition is not maintainable. However, writ petition was disposed of with a liberty to petitioner to make appropriate representation before Authority concerned and said Authority was directed to take appropriate decision on such representation, expeditiously. It appears that Managing Director also moved an application before Chairman stating that order dated 28.08.1998 has been obtained by petitioner by misrepresentation and also stating that no appeal was maintainable under U.P. Cooperative Employees Service Regulations, 1975 (hereinafter referred to as "Regulations, 1975") therefore, order dated 28.08.1998 need be re-considered.
6. Chairman, UPICA, thereafter, giving opportunity of hearing to petitioner, passed order dated 16.11.1999 recalling its earlier order dated 28.08.1998 pointing out that Regulations, 1975 are not applicable in the case in hand.
7. Counsel for petitioner contended that under Regulation-4 of Regulations, 1975 petitioner is entitled to be considered for regularization and respondent-2 has rightly passed earlier order, therefore, petitioner should be directed to be considered as a regular employee and impugned order recalling earlier order be quashed.
8. From record, it is evident and also admitted by learned counsel for petitioner that petitioner was engaged on daily wage basis. His appointment was never made on ad-hoc basis. Since he continued for about three years after his engagement on 01.03.1984 on daily wage basis and having been completed 240 days in the preceding year of his termination, Tribunal found that his termination amounts to retrenchment and procedure of retrenchment has not been followed hence, his termination was bad. Tribunal in its award dated 14.11.1994 has not said anything regarding status of petitioner that he should have been considered on ad-hoc basis or his status as daily wager should be changed. It could have been considered by Employer in accordance with service conditions applicable to employees of UPICA.
9. Learned counsel for petitioner relied on order dated 18.02.1992 (Annexure-3 to writ petition) whereby, in anticipation of approval of Institutional Service Board, certain employees were sought to be employed as regular basis but said order shows that those employees were appointed in the pay-scale of 950-1500 on ad-hoc basis and temporary basis and not on daily wage basis.
10. Regulation 4 sought to be relied by petitioner clearly talks of those employees who were appointed on ad-hoc basis in any co-operative society falling within the purview of Board on or before 01.05.1983 and continuing as such on the date of commencement of said Regulation. Aforesaid Regulation, therefore, is applicable to those who were appointed on ad-hoc basis on or before 01.05.1983 but petitioner was appointed on daily wage basis and that too after the cut off date i.e. 01.05.1983 hence, petitioner is not covered by aforesaid Regulation.
11. It is submitted that subsequently an amendment was made in the aforesaid Regulations wherein cut-off date was changed to 01.10.1986 but that will not help petitioner for the reason that Regulation is applicable to ad-hoc employees and not to those who were employed on daily wage basis.
12. Right of daily wager to claim regularization, unless founded on statuary provision, cannot be accepted by Court in view of Constitution Bench Judgment in Secretary, State of Karnataka Vs. Uma Devi 2006 (4) SCC 1 wherein it has been held that a daily wager has no right to continue and claim regularization unless any statutory provision exists providing for regularization. Same view is also expressed in State of West Bengal & others Vs. Banibrata Ghosh & others 2009 (3) SCC 250; Council of Scientific & Industrial Research & others Vs. Ramesh Chandra Agarwal & another 2009 (3) SCC 35; General Manager, Uttaranchal Jal Sansthan Vs. Laxmi Devi & others 2009 (7) SCC 205; Union of India and others Vs. Vartak Labour Union, 2011(4) SCC 200; Brij Mohan Lal Vs. Union of India and others, 2012(6) SCC 502; University of Rajasthan and another Vs. Prem Lata Agarwal, 2013(3) SCC 705; Amarendra Kumar Mohapatra and Ors. vs. State of Orissa and Ors., 2014(2) SCALE 589; Nand Kumar Vs. State of Bihar & Ors., 2014 (3) AWC 2378 (SC); Secretary to Government, School Education Department, Chennai & Ors. Vs. Thiru R. Govindaswamy and Ors., (2014) 4 SCC 769 and Director, Printing and Stationary Department, U.P. Government Press & Ors. Vs. Moti Lal and Ors., (2014) 2 UPLBEC 1193.
13. Now, coming to impugned order, learned counsel for petitioner could not show that any appeal was provided to Chairman under any statutory provision with regard to question of alleged regular appointment. Appeal being a substantive right, unless conferred by statute, cannot be assumed, hence, alleged Appellate Order passed by Chairman, UPICA on 28.08.1998 treating representation of petitioner as an appeal was wholly without jurisdiction. Thus, it has rightly been cancelled by subsequent order. I do not find, per se, any illegality in the impugned order so as to justify interference by this Court particularly when any such interference would result in revival of another illegal order.
14. It is well settled that this Court when required to exercise its extraordinary jurisdiction under Article 226 of Constitution, it would be justified in declining to interfere in an illegal order, if setting aside of such an order would result in revival of another illegal order. In other words, Court will not set aside an order merely on the ground that opportunity was not given or principles of natural justice were not followed, if as a result of setting aside such an order would revive in favour of petitioner concerned, another illegal order for the reason that this Court will not perpetuate illegality and no person can be allowed to enjoy benefit of an illegal order, by taking recourse to this Institution of justice, under Article 226 of Constitution.
15. A Division Bench of this Court (of which I was also a member) in Amarendra Singh Vs. State of U.P. 2008(1) ADJ 397 (DB)=2008(1)ESC 734 has held that since the petitioner has invoked extraordinary jurisdiction under Article 226 of the Constitution, the remedy is not as a matter of right and this Court is not bound to interfere even if technically or otherwise the order impugned is found to be illegal or erroneous. There are certain exceptions which are well recognised and one of such exceptions is where setting aside of an order will result in revival of another illegal order.
16. In Champalal Binani v. The Commissioner of Income Tax west Bengal and others AIR 1970 SC 645, Court while dealing with jurisdiction of the Court with respect to issuance of writ of certiorari held that "a writ of certiorari is discretionary, it is not issued merely because it is lawful to do so."
17. In Durga Prasad v. The Chief Controller of Imports and Exports and others AIR 1970 SC 769 (para 7) and in Bombay Municipal Corporation for Greater Bombay v. Advance Builders (India) Pvt. Ltd. AIR 1972 SC 793 (para 13), it was held that writ jurisdiction is discretionary and the Court is not bound to interfere even if there is error of law.
18. It would be appropriate to refer the view expressed in Municipal Board, Pratabgarh and Anr. v. Mahendra Singh Chawla and 1982(3) SCC 331, which reads as under:
"...this Court is not bound to tilt at every approach found not in consonance or conformity with law. The interference may have a deleterious effect on the parties involved in the dispute. Laws cannot be interpreted and enforced divorced from their effect on human beings for whom the laws are meant. Undoubtedly, rule of law must prevail but as is often said, 'rule of law must run akin to rule of life. And life of law is not logic but experience'. By pointing out the error which according to us crept into the High Court's judgment the legal position is restored and the rule of law has been ensured its pristine glory. Having performed that duty under Article 136, it is obligatory on this Court to take the matter to its logical end so that while the law will affirm its element of certainty, the equity may stand massacred. There comes in the element of discretion which this Court enjoys in exercise of its extraordinary jurisdiction under Article 136."
19. What has been observed by Apex Court with reference to Article 136 of the Constitutions, in my view would equally be applicable when this Court is required to exercise its equitable extraordinary jurisdiction under Article 226 of the Constitution of India. In a given case, having set legal position straight, still this Court may decline to interfere where equity justifies the same or where facts and circumstances warrant that discretionary relief should be declined. Where interference with an illegal order may result in revival of another illegal order, Court would be justified in refusing to interfere.
20. In Employees' State Insurance Corporation and others vs. Jardine Henderson Staff Association and others AIR 2006 SC 2767, Court held that relief in a writ of certiorari can be denied inter alia when it would be opposed to public policy or in a case where quashing of an illegal order would revive another illegal order. In para 62 of the judgment, Court held that High Court under Article 226 and Supreme Court under Article 136 read with 142 of the Constitution has the power to mould relief in the facts of the case.
21. In Ramnik Lal N. Bhutta and Anr. v. State of Maharashtra, AIR 1997 SC 1236, Court observed:
"The power under Article 226 is discretionary. It will be exercised only in furtherance of interest of justice and not merely on the making out of a legal point."
22. In State of H.P. v. Raja Mahendra Pal and Ors. (1999) 4 SCC 43, in para 6 of the judgment, Court held:
"...It is true that the powers conferred upon the High Court under Article 226 of the Constitution are necessary in nature which can be invoked for the enforcement of any fundamental right or legal right but not for mere contractual right arising out of an agreement particularly in view of the existence of an efficacious alternative remedy. The constitutional court should insist upon the party to avail of the same instead of invoking of extraordinary writ jurisdiction of this Court. This does not however debar the Court from granting the appropriate relief to a citizen under peculiar and special facts notwithstanding the existence of an alternative efficacious remedy. The existence of special circumstances are required to be noticed before issuance of the direction by the High Court while invoking the jurisdiction under the said Article...."
23. Similarly, in Director of Settlement v. M.R. Apparao (2002) SCC 638 in para 17 Court held that the power vested in High Court under Article 226 of the Constitution is discretionary.
24. Following the principle laid down in the aforesaid decisions, this Court has reiterated the same view in a number of cases, including R.K. Shukla VS. Chairman Town Area Committee & Another (Writ A No. - 19889 of 1991) decided on 17.1.2013. Suffice it to say that this Court is not bound to interfere even if technically or otherwise, order impugned, is found to be illegal or erroneous, if it would result in revival of any illegal order.
25. In Amrendra Singh Vs. State of U.P. & Ors., 2008 (2) UPLBEC 60, this Court has declined to interfere in intra Court appeal with an order of Single Judge even though legally it was not sustainable since substantial justice had been done therein and setting aside order may have resulted in revival of another pernicious order.
26. In view of above discussions, I find myself unable to interfere with impugned order dated 16.11.1999 cancelling earlier order dated 28.08.1998.
27. Writ petition lacks merit and accordingly dismissed.
28. Interim order, if any, stands vacated.
Order Date :- 15.2.2019 Siddhant Sahu/AK