Allahabad High Court
Indian Telephone Industries Ltd. vs The Director (D.O.T.) And Ors. on 3 March, 2000
Equivalent citations: (2000)2UPLBEC1187
Bench: G.P. Mathur, A.K. Yog
JUDGMENT
G.P. Mathur and A.K. Yog, JJ.
1. Smt. Deepali Bhowmick (respondent No. 3 in this appeal-writ petitioner) filed Civil Misc. Writ Petition No. 46366 of 1999 praying that a writ of mandamus be issued commanding the respondents to absorb her services on the post of typist and pay her salary admissible to regular typist of M/S: Indian Telephone Industries Ltd., Naini. It was further prayed that a writ of mandamus be issued commanding the respondents not to terminate her services by virtue of her contract employment and to pay her salary/wages as and when the same is due with all arrears. Along with the writ petition an application for interim relief was moved wherein a prayer was made that an interim mandamus be issued commanding the respondents to permit her to discharge her duties on the post of typist and to pay her salary/wages in the minimum of the grade admissible to a regular typist of M/s. Indian Telephone Industries Ltd.. Naini. The writ petition was filed in office on 1-11-1999 and on 2-11-1999 the following order was passed :
"Learned Counsel for the petitioner has urged that the petitioner was appointed in the year 1993 as typist in the office of respondent. The services of the petitioner has been orally terminated by the respondents, as the petitioner made a request for regularisation of her service. The Apex Court in the case of Secretary, Harayana State Electricity Board v. Suresh and Ors., reported in JT 1999 (2) SC 435, has held that employees, engaged on contract basis to meet out job of perennial nature are entitled for their permanent absorption in the establishment.
In this view of the matter, the petitioner is entitled for interim order.
Until further order of this Court the respondents are directed to continue the petitioner in service as typist and pay her minimum pay scale which is payable for the post of typist."
2. Feeling aggrieved by the aforesaid order the present Special Appeal has been filed by (1) I.T.I. Ltd.. Naini, Allahabad through its Executive Director and (2) General Manager (T & Q), M/s. Indian Telephone Industries Ltd., Naini.
Allahabad.
3. In order to appreciate the submission made by learned Counsel for the parties it is necessary to notice the parties which have been arrayed as respondents in the writ petition and they are as follows :
1. M/s. Indian Telephone Industries Ltd., Naini. Allahabad through its Executive Director.
2. The General Manager (T & Q), M/s. Indian Telephone Industries Ltd., Naini. Allahabad.
3. The Director (DOT). Office of the Quality Assurance, M/s. Indian Telephone Industries Complex, Naini, Allahabad.
4. The Sub-Divisional Engineer (Q & A). Office of the Director, Quality Assurance. Indian Telephone Industries Complex, Naini. Allahabad.
4. Learned Counsel for the appellants has submitted that neither the writ petition has been admitted nor notices have been issued to the contesting respondents but only the aforesaid interim order has been passed on 2-11-1999 when the petition was taken up for admission hearing. He has further submitted that M/s. Indian Telephone Industries Ltd., Naini is a Government Company which is a separate legal entity distinct from Department of Tele-Communication whose officers have been arrayed as respondent Nos. 3 and 4 to the writ petition. Learned Addl. Standing Counsel for Union of India has also accepted the position that respondent Nos. 3 and 4 of the writ petition are officers of the Department of Tele Communication and arc Central Government employees and are not employees of M/s. Indian Telephone Industries. It is urged that the writ petitioner could either by an employee of M/s. Indian Telephone Industries Ltd. or an employee of Department of Tele Communication of Government of India and she could not simultaneously be an employee of both of them but as the impugned order directs the respondents to continue the writ petitioner in service and to pay her minimum pay scale which is payable for the post of typist the same is vague. Having considered the submission made by learned Counsel for the parties, we are of the opinion that as the impugned order docs not specify as to which of the two sets of the respondents have to continue the writ petitioner in service and to pay her salary, it is likely to create serious problem in its execution and therefore it deserves to be set-aside.
5. Sri Rakesh Tiwari has next contended that the writ petitioner had never been employed by the appellant M/s. Indian Telephone Industries Ltd.. Naini and she was not in service of the appellants at any point of time. He has urged that the documents filed along with the writ petition do not at all establish that the writ petitioner was employed by M/s. Indian Telephone Industries Ltd. Sri R.C. Shukla, learned Counsel for the writ petitioner has on the other hand urged that the documents filed as Annexures-C.A. 2 to C.A. 3 to the counter-affidavit, which were also part of the record of the writ petition clearly show that she was an employee of M/s. Indian Telephone Industries Ltd., Naini. It is, therefore, necessary to examine the aforesaid documents. Annexure C.A.-2 is a copy of attendance sheet of September, 1993 and Annexure C.A. 2- A is a copy of attendance sheet of September, 1999 wherein Smt. Deepali Bhowmick is shown to have been present. These sheets bear the caption Attendance Sheet of Contractors Casual Labour (Working in ITI Ltd. Naini). Annexure C.A.-2-B. C.A. 2-C and C.A. 3 are copies of certificates given on 2-4-1993. 19-8-1996 and 11-12-1998 by officers of the Department of Tele Communication mentioning that the holder of the Pass (Smt. Deepali Bhowmic) casual typist was allowed to enter M/s. I.T.I. Ltd., Naini and avail pass facilities. Annexure C.A.-2-B shows that it was valid upto 30-4-93. These documents bear the seal in Department of Tele communication and have been signed by officers of the aforesaid department. In our opinion they by themselves do not establish that Smt. Deepali Bhowmick was an employee of Indian Telephone Industries. Naini nor it is possible to draw any inference that she had been engaged by the aforesaid Company and was working there for some period of time as they are stray documents of different dates between a long period of six years i.e. from 1993 to 1999. On this material alone it is difficult to hold that the writ petitioner had been continuously working and rendering service in Indian Telephone Industries. Naini.
6. There is another aspect of the matter, which deserves notice. The impugned order virtually grants the relief which could be granted to the writ petitioner at the stage of final hearing. In State of U.P. v. Kumari Remi Tiwari, (1993) 2 UPLBEC 1325, a Division Bench of our Court after considering several decisions of Apex Court held as follows :
An interim order is generally passed to preserve the state of affairs obtaining on the date of institution of the proceedings. It is seldom passed to alter that position. Thus an interim order may be passed to restrain the respondent from interfering in the possession of the petitioner over an immovable property, or to stay the operation of an order termination of service which has not taken effect or to stay the alteration in the scale of pay.
7. The order under appeal, instead of preserving the state of affairs obtaining on the date of the filing of the writ petition alters the same by accepting the claim of parity raised by the respondents. No exceptional circumstance has been pointed out by the learned Single Judge warranting departure from the normal rule. The order under appeal can not, therefore, be sustained.
8. Moreover, the learned Single Judge has granted to the respondents the relief which may be granted to them at the disposal of the writ petition if their claim is found to be sustainable. There is no indication in the judgment as to how the appellants will be restored to the original position, if the writ petition ultimately fails. Accordingly, for all practical purposes, the relief granted to the respondents through the judgment under appeal is final. Such an order/judgment given at the interim stage can not be sustained.
9. Similar view was taken in U.P. Junior Doctors Action Committee v. Sheetal Nandwani. JT 1992 (1) SC 571 and Committee of Management v. Sushil Kumar Sharma. (1993) 2 UPLBEC 1263. Recently in Special Appeal No. 1190 of 1999. Managing Director, Indian Farmers Fertilizer Cooperative Ltd. v. Himanshu Kumar Srivastava, decided on 2-11-1999 a similar order passed by a learned Single Judge directing the employer to continue the writ petitioner in service and pay him salary was set aside on this ground.
10. Learned Single Judge has relied upon the decision of Apex Court in Secretary. Haryana State Electricity Hoard v. Suresh. JT (1999) 2 SC 435, for passing the impugned order. In the said case the workmen had approached the Labour Court which after examining the evidence adduced by the parties had recorded a finding that though the workmen had been engaged on contract basis but they were carrying out job of perennial nature and had been working continuously for a considerable length of time. In the present case the writ petitioner did not approach the Labour Court but has straight away filed the writ petition where the question whether, she has been continuously working for a considerable length of time on a job of perennial nature is still to be thrashed out and examined. Therefore, on the material as it stands today it may not be possible to record any finding on the relevant issues which is necessary for applying the ratio of the judgment rendered in the case of Haryana State Electricity Board (supra).
11. For the reasons mentioned above the Special appeal succeeds and is hereby allowed. The impugned order of the learned Single Judge in so far as it directs the respondents to continue the writ petitioner in service as typist and pay her minimum pay scale which is payable for the post of typist is set aside. It is made clear that any observation made in this order is only for the purpose of deciding the special appeal and shall not be construed as an expression of opinion regarding the merits of the claim made by the writ petitioner.